This case was affirmed at a former day of this court, and is now before us on motion for rehearing. Appellant has filed an able brief, the principal insistence of counsel being that the case should be reversed because of the failure of the court to give his special requested instruction to the effect that appellant had a right to interfere in the difficulty, for the protection and in defense of Moseley; that the facts in the record, chiefly coming from the State's witnesses, show a phase of the case in which Moseley acted in self-defense; and that, if the appellant interfered at all, he did so in defense of Moseley. It is unquestionably sound law that a person may interfere in a difficulty in behalf of a friend who is unlawfully attacked, and he will be entitled to the same rights in the defense of such party as he would were he himself assailed; and we go farther, and assert that one might interfere on behalf of a mere bystander, who is unlawfully attacked, and be subrogated to his rights of self-defense; or he might interfere to separate parties and preserve the peace, and he could defend himself by showing that his acts and conduct were instigated by such purposes only. We agree with appellant's counsel that the right to defend another may be set up, if it arises, whether from the State or defendant's testimony. If it arises from the testimony of the State it may be relied on, although it may conflict with the testimony of the defendant. We deem it unnecessary to cite authorities to support this view. On the other hand, these propositions are equally correct: If a person enters into a difficulty in which others are engaged, and he interferes with knowledge that the party on whose behalf he engages has entered into the fight, not in self-defense, but is himself the aggressor, or engaged in a difficulty willingly and voluntarily, that is, in mutual combat, then he cannot justify himself in becoming a party to said difficulty. Nor can a party interfere in a difficulty, and make himself a party to the combat on the side of one or the other of the combatants, merely out of a reckless disposition to engage in a fight, and thereafter set up self-defense or the defense of another. We understand that appellant in his motion for rehearing assails the facts upon which we predicated our original opinion, to the effect that a majority of the court was mistaken, in declaring that Moseley did not engage in the difficulty with Yoe and fight in self-defense; and he cites some facts from which the deduction is drawn that Moseley did fight in self-defense, and that appellant interfered on his behalf and had a right to so interfere in his protection. In view of the earnestness with which counsel insists on this view of the case, we have examined the statement of facts carefully to see if this inference can be reasonably drawn from what occurred before and at the time of the difficulty. It may be true that there are some isolated expressions in the record that would appear to justify *Page 464 appellant in his conclusion; but we maintain that these, viewed in the light of all the facts, are dissipated and appellant's theory destroyed. It may be stated in general terms that Clyde Yoe and Moseley had a difficulty about nightfall, in front of the Llano Hotel; they fought with pistols. Appellant, according to the theory of the State, engaged in the difficulty on the side of Moseley, and fought with a knife. After the struggle was over, both Yoe and Moseley were found to be mortally wounded. Moseley was shot to death, evidently by Yoe, and Yoe was cut and stabbed to death with a knife. Moseley did not use a knife. Now, it may be asserted at the outset, that appellant's testimony all tended to show that he did not engage in the difficulty: his theory being an alibi. Oscar Smith, one of appellant's witnesses, testified, that he met appellant just before the shooting, going away from them north toward the Klondyke saloon, as the witness was going towards the difficulty; met him about Lauterstine's store; that he did not see defendant Adams during the difficulty. About the time the difficulty ended he saw some one standing by the parties where they had fallen, near the telephone post. Hazlitt, another witness for defendant, claims to have been present at the difficulty; says he saw defendant come up while Yoe and Moseley were talking. He took hold of Yoe, and told Yoe to put up his gun, and behave himself as nobody wanted to hurt him. Defendant then turned Yoe loose, turned around and walked off down the street toward the Klondyke saloon, and he did not see him any more until just about the time the shooting had ceased, or just a second before it had ceased, when he came by going in the direction of Yoe and Moseley, where they had fallen by the telephone post, and said, "Why don't you separate them?" Appellant himself testified that he was in front of the Klondyke saloon, and barber shop, and heard a disturbance up about the Llano House, and went up there, and saw Moseley and Yoe standing near each other. Yoe had a gun. Yoe said to Moseley as he threw his gun down on him: "`God damn you I will kill you'; and Moseley held out his hands open, and said, `I haven't got anything.' I walked up to Yoe's right side, and put my left arm around on his left shoulder, and with my right hand took hold of his hand that had the gun in it, and told Yoe not to shoot the man as he had nothing. Yoe raised his head a little, and then looked up at me, and then let down his hands and the gun and let down the hammer of his pistol. I then turned Yoe loose, and walked off, and thought everything was over and there would be no more trouble; went back to the Klondyke saloon; stepped in, got a drink of water, came out, and the first shot was fired." The Klondyke saloon, it may be remarked, was in the same row of buildings, north of where the difficulty occurred (and as we estimate it, about one hundred feet from where the difficulty occurred at the Llano Hotel.) He further states, that he went up to where the difficulty had occurred, and when he got to where the bodies were, saw B.M. Hall standing by the telephone post with a pistol in his *Page 465 hand, which he was either trying to put down in his pants in front, or was holding it about the body at about that place: "I reached over and caught hold of one of the parties. I did not know who it was at the time, but afterwards discovered it was Yoe, and gave him a jerk, and jerked him away and tried to get his gun out of his hand. I just caught hold of Yoe's hand by the wrist, which hand had the gun in it, and tried to jerk him loose, and he pulled his hand loose from me. I then grabbed the gun by the cylinder, and was pulling it and jerked it up and down this way. Tried to get the gun out of Yoe's hand and made several jerks and pulls before I got it from him; and then handed it to some one. Yoe then laid over and said, `I am killed.' Looked over and saw two or three persons around Moseley. I helped to carry Yoe in, as far as the door that leads into the office; and there turned Yoe loose, and went down to Klondyke to try to phone for a doctor." He further stated on cross-examination, that he might have struck Yoe in the face, about the head with a pistol, but if he did, it was unintentional and when he was trying to get the gun away from him; did not know who deceased was when he first got there, and did not know who he (deceased) was shooting at; had no knife about him, except a little pearl handled knife; that he did not cut deceased Clyde Yoe, and had nothing to do with the cutting. We have culled from the record, so far as we have been able to discover, all of appellant's testimony tending to show his attitude in the case. We believe it may be safely asserted that there is nothing in his evidence that would tend to raise the issue of interfering in the difficulty on behalf of Moseley; and if we should find such evidence in the record, it must come from the State's case.
Let us review briefly then, the testimony the record presents upon this issue that comes from the State's witnesses. Shirley testifies as to the beginning of the difficulty between Yoe, Biles and Moseley. It appears from this recitation, that these parties, with some others, had gone to take supper with Yoe at the Llano Hotel. The parties, at least some of them, appeared to be drinking. At the supper table, some disturbance occurred, and the hotel proprietor requested the parties, if they could not keep order, to leave; that they could not get supper there unless they behaved themselves. Some of the parties who accompanied Yoe, suggested that they leave, and go to a restaurant and get their supper. This appeared to have angered Yoe, and he went out with them and protested against their leaving. He and Biles engaged in a wordy altercation on the sidewalk of the hotel. Yoe drew his pistol on Biles, and cursed him. Biles turned and went down the street toward the Klondyke saloon. At this Corbett stepped up to Yoe, and Yoe drew his pistol on Corbett, and told Corbett not to come to him. Corbett said, "For God's sake, put up that pistol, and let's not have any trouble here." Moseley came up, and asked Yoe what was the matter, Yoe made some reply, and Moseley said, "Biles is a friend of mine, and I don't want you cursing him." Yoe told him, *Page 466 "You want to take it up God damn you." Moseley then placed his hand around like he was going to get a pistol, and then Yoe cocked his pistol, and pointed it towards Moseley's bosom, and told Moseley to take his hand away from there or he would shoot him. Moseley said, "I haven't got any," and Yoe, said, "Yes you have, God damn you." Some one else tried to get to Yoe, and he threw his pistol down on him, and told him to stop. Several tried to get to Yoe, but he invariably threw his pistol on them and told them to stop. During this time Moseley had walked out into the street, about ten steps and some one was there talking with him. About this time witness looked around towards Moseley and saw him pull his pistol from somewhere near the front and place it under his coat behind him. He then turned around, and walked towards where Yoe was. Before Moseley had drawn his pistol and placed it behind him under his coat, deceased Yoe had backed towards the west window in the southwest room of the hotel, and was standing near said window. About the time witness told Yoe to put up his pistol, Polk Adams walked up and started to Yoe, and Yoe told Adams to stop, and cocked his pistol when he told Adams to stop. Defendant Adams, then slipped around, and put his arms around Yoe, and took hold of Yoe's pistol. Hall said to Adams: "Turn him (Yoe) loose, the other man has got a pistol;" and defendant then turned Yoe lose and stepped back. This witness further relates that at this juncture he saw Moseley coming towards Yoe, and took hold of him, and Yoe caught Moseley with his left hand. Moseley said something, but witness could not tell what it was. Then Yoe fired, and Moseley fired. They both fired almost together, but Yoe fired the first shot. The parties then fought until they got off the sidewalk, and both fell near the southwest corner of the hotel near the telephone pole. Defendant, after they had fallen, went up to where they were, and took Yoe's pistol from his hand, and struck him two or three times on his face and head. Adams dropped the pistol, and said he had to do it to get them stopped. This witness further says, he did not see defendant, Adams, after he caught hold of Yoe and turned him loose, and stepped back until after the shooting had ceased. Yoe and Moseley only were together when the shooting began.
Witness Hall testifies that he saw the difficulty: "Yoe was on a plank walk in front of the hotel, and was facing northwest and backing towards the window in the southwest room of the hotel with a pistol in his hand. Moseley was advancing on Yoe, while Yoe was backing, telling him to stop. Yoe said, `Don't come to me. You are a friend of Bill Biles and not a friend of mine.' Yoe said, `Take your hand from under your coat.' Moseley at the time had his hand under his coat. He replied, `He did not have a thing,' and took his left hand from under his coat. Yoe then dropped the muzzle of his six shooter towards the floor. Witness told Moseley to stop; `don't go to Clyde'; and made one or two steps toward Yoe, intending to get his pistol. Saw defendant at this juncture come up and throw his arm *Page 467 around Yoe, over Yoe's back. Yoe's arms were down by his side. Said to Adams, take Claude's pistol and I will go to Bob. Started to where Moseley was standing, when Moseley threw his left hand under his coat and drew a pistol. Witness said, `Don't Mr. Bob; don't go back there.' About this time I looked and saw defendant had thrown Yoe's face around toward the south, and then saw Yoe pull himself around with his face toward the west, and either say `By God,' or `My God,' Moseley then started back towards where Yoe and defendant were; had a pistol in his left hand, and reached his right hand over, and either caught his left hand or arm with it like a man was going to shoot, and was holding his pistol in front of him all the time. Just as he got to the edge of the gallery, Yoe fired with his hands down. Defendant still had his hands around Yoe, holding Yoe in front of him. When Moseley and Yoe clinched the firing became rapid between the parties. They scuffled to the edge of the gallery, and as they got off the gallery defendant turned them loose. The parties then scuffled around and fell by the telephone post. Witness asked Yoe if he was shot. He said, `No, but I am cut all to pieces.' Witness asked him who cut him, and he said `Polk Adams.' After the difficulty was over, and while the parties were lying by the telephone post, some one said, `Don't do that,' and defendant said, `I had to knock them down to separate them.' During the time defendant had hold of Yoe and had his arms around him, witness heard Yoe's clothes rip, which he supposed was caused by his trying to get away from defendant. This was just before the firing began." The witness Cummings stated that when Moseley first approached Yoe, he said, "Clyde what is the matter, tell me your troubles." Tom Foster, another witness for the State, saw the shooting between Yoe and Moseley. This witness describes the transaction pretty much as the two former witnesses. Says he saw a man holding Yoe around the arms; that this man had on a dark coat, and looked to him somewhat like defendant. At the termination of the difficulty heard Yoe say, that Adams killed him. Oglesby, another witness, was present at the difficulty and heard Yoe, who was standing on the hotel sidewalk with his pistol in his hand, point it toward Moseley, say to Moseley, not to take another step toward him. Moseley was then about ten feet distant from Yoe. Yoe then stepped back towards the window, in the southwest corner room of the hotel, still holding his pistol in his hand. At this time defendant came up and took hold of Yoe, put his arm around Yoe's shoulder, and take hold of Yoe's hand that had the pistol in it, and tried to get Yoe's pistol from him. Hall told him to leave his gun alone, as the other man had a gun. Defendant Adams then turned Yoe loose and stepped back away from him. This witness then describes how the difficulty began: "Moseley was some twenty or thirty steps from Yoe, out in the street. He then came back, and held out his right hand to Yoe and said something to him. Moseley threw up his hand with a pistol in it, and Yoe threw up his *Page 468 hand with a pistol in it, and fired at Moseley. Moseley was on the ground and Yoe on the gallery. Moseley had his pistol in his left hand (he being left-handed) Moseley and Yoe then clinched, scuffled and fell off the gallery. The parties scuffled around towards the telephone post and fell. Defendant came up and grabbed Yoe's pistol and struck him over the head, was straddle of Yoe, like, and holding Yoe's coat. Yoe said, `Turn me loose, I am dead,' and defendant stopped striking him." This witness says he did not see defendant anywhere from the time he saw defendant take hold of Yoe and turn him loose and step back, before the shooting began, until after the shooting ceased, and he saw him come up and take hold of Yoe.
This is all the testimony on the part of the State bearing on the transaction as to how the difficulty began and what occurred during its progress. If there appears from this any evidence that shows appellant interfered in the difficulty, either to preserve the peace, or to protect Moseley, we fail to discover it. True, Yoe appears to have been on the war-path. He fell out with the parties because of the incident at the supper table; and cursed Biles. He remained in front of the hotel on the sidewalk in a defiant attitude, with his pistol drawn. When Moseley attempted to approach him, he told him not to come to him; that he was a friend of Biles. Moseley told him he was not armed. Yoe told him that he was. There is some testimony in the record showing that Yoe had reason to know he was. Adams is not shown at any time to have commanded the peace. But according to these witnesses, he came up to Yoe at the beginning of the difficulty, when Moseley was approaching him. One of the witnesses describes appellant as slipping around Yoe, putting his arms around him, and holding his pistol. The witness Shirley says, he was told by Hall to turn Yoe loose, that the other man had a pistol. He then turned him loose, without any further effort at this juncture to interrupt the fight. Another witness, while he saw appellant holding Yoe at the time Moseley was approaching him, saw Yoe evidently struggling with appellant, and exclaimed, "By God," or "My God," and at this juncture he heard Yoe's clothes ripping, which at the time he supposed was caused by his trying to get away from defendant. All of these witnesses for the State describe Moseley as advancing towards Yoe, when the fight began, and they appeared to have joined hands and began a regular pistol duel. As stated, Moseley had no knife, and as Yoe was cut with a knife, and thus killed, evidently from all the testimony, the cutting was done while the shooting was going on, or just before, and could have been done, as the jury found, by no one, except appellant, Polk Adams, who did it clandestinely. In his dying breath, deceased Yoe stated that Polk Adams had cut him all to pieces. Appellant himself claims that he did not have a knife at the time, except a little pen knife, yet as many as three witnesses observed him just immediately before the difficulty coming from towards the Klondyke saloon to where the difficulty was brewing with an open knife in his hand, *Page 469 with the blade up his sleeve, showing evidently that he was bent on mischief and was prepared for it. After the difficulty appellant was seen with something bright in his hand like a knife blade, and with blood on his hands. One witness states that he said, he got this blood on his hand, from carrying Yoe into the house; and to another he stated that he got the blood on his hands trying to separate the parties. Even after the difficulty, when Yoe was helpless, he was found pursuing him, wringing his pistol from him, and beating him over the head with it, under the pretense that he was then trying to separate the parties. Immediately after the difficulty he was found trying to borrow a pistol, stating that he wanted to have some more fun. To one witness he stated, "Clyde started it, and got it stuck to him, and if there are any more that want some I am still here." To another he stated, "Clyde Yoe shot the first shot. I followed him up here and tried to keep it down, and he did it anyway, and got the worst of it, and if he is not dead, God damn him, I hope he will die. Clyde did the cutting, I have the knife right here." To another he stated, as he pushed his way through the crowd at the Klondyke saloon, "They sure had it. I was right in the middle of it, and I sure give them hell," and extending his right hand, said, "See here." This witness saw blood on appellant's hand and some bright instrument which he held in it. These were expressions, among others, that this record shows were made by defendant to witnesses immediately after the transaction, showing that defendant was engaged in it and shows his animus in engaging in the difficulty.
It occurs to us that, notwithstanding the witnesses for the State show that Yoe was acting in a lawless and boisterous manner, and was at the time seeking a difficulty, that Moseley nowhere places himself in the attitude of a peacemaker, except in one or two expressions that might, but for what was subsequently done, be construed in his favor; that is, he asked Yoe what was his troubles and tried to pacify him, when he came up to him, according to one or two witnesses; but immediately, according to the consensus of the testimony of all the witnesses, assumed the attitude of one ready and willing to engage in a difficulty with Yoe, who told him not to come to him or about him, he insisted on advancing upon him, though this conduct was protested against by one or two witnesses, and drew his pistol and fired at Yoe, almost simultaneously with the first shot of the latter. Appellant nowhere, as we regard the record, puts himself in the attitude of a peacemaker. We believe that a fair interpretation of the record shows that Yoe and Moseley fought together willingly, and that a court trying Moseley for killing Yoe, would have been justified in refusing a charge in his favor on self-defense; and consequently that the court was justified in refusing a charge in favor of appellant on the ground that he may have interposed in the difficulty in the justifiable defense of Moseley. No question is raised as to his knowledge as to how the difficulty began, and it must be assumed in the face of this *Page 470 record, that he entered into the difficulty, knowing the situation and how it was brought about. We do not believe that the law of self-defense or the defense of another anywhere arises from this record. Appellant does not claim to have been an especial friend of Moseley, indeed he claims to have been a better friend of Yoe than he was of Moseley. The law of self-defense or defense of another, was never intended to shelter a man, who according to his own testimony, was not a party to the difficulty but was absent at the time; and who, according to the testimony for the State fairly interpreted, did not enter said conflict for any lawful purpose, but knowing that the difficulty was brewing near the hotel, prepared himself with a drawn knife, with a blade according to the testimony of witnesses, about four inches long: that knife open and the blade up his sleeve, and thus entered upon the scene of the contest, and directly after coming upon the ground, seized one of the parties (Yoe) and without notice, and without the command of the peace, assumed the role of an assassin, and clandestinely stabbed him to death. We do not believe that the law of self-defense was ever intended to cover such a case. Even if it be conceded that there may be some expressions in the testimony of the State's witnesses which gave Moseley the right of self-defense, and that in the trial of Moseley for killing Yoe, the court would be required to present the issue of self-defense, still the manner in which appellant, according to the evidence, entered this difficulty, the part he took, not to protect Moseley, but simply availing himself of the opportunity to kill, by taking advantage of Yoe, would not entitle him to a charge in the defense of Moseley. Accordingly we hold that the court did not err in failing and refusing to give the requested charge on this subject.
It is not necessary to discuss other matters, as they are fully covered in the original opinion; and we would not have entered upon this discussion but for appellant's strenuous insistence through counsel that we misinterpreted the record in the original opinion, and that the same when fairly looked at, tends to show self-defense on the part of Moseley, and that appellant entered the difficulty for his protection.
The motion for rehearing is overruled.
Overruled.