Appellant insist on several grounds for rehearing, but in the view we take of it, it is only necessary to consider two. In our opinion the charge of the court was correct on the doctrine of cooling time, as heretofore announced.
While appellant reserved an exception to the action of the court giving the State's special requested instruction, yet in the argument in submitting the case he failed to call attention to the same; and while it was referred to it was not thoroughly discussed in the original opinion. In his motion for rehearing he has presented his assignment of error to this charge with much earnestness and force. The exceptions pointed out by him to the charge are special; and it does not occur to us that the first two exceptions taken point out any error in the action of the court. However, the third and last exception reads, as follows: "Said charge in effect negatives the defendant's right to resist an attack which imperiled his life or inspired him with the reasonable belief of suffering serious bodily injury at the hands of the deceased, if he provoked or renewed the difficulty, no matter what his purpose may have been in so doing. The court, after instructing the jury in general terms, if they believed that deceased seized property defendant believed was his and refused to give up the same, and they had a difficulty on that account, and that they afterwards separated; and that thereafter defendant followed deceased up the road, not for the purpose of renewing the difficulty, but with the honest intention to demand of deceased a return of the money, which he believed deceased had wrongfully taken from him, and that deceased refused to comply with his demand, and was about to make an unlawful attack upon him with a knife, and the defendant reasonably believed he was in danger of serious bodily injury or death *Page 648 from said attack, and that on said account he fired and killed deceased he would be justified in so doing. The court then proceeded to instruct the jury, as follows: "On the other hand you are charged that, where the possession of personal property has once been lost, the owner has no lawful right to regain it by such means as result in homicide. So, in this case, if you believe that, prior to the shooting, deceased, without defendant's consent, seized money that was defendant's property, or that defendant fairly and reasonably believed was his property, and that deceased refused to give up such money, and that defendant and deceased had a difficulty on account thereof, and that, after they separated, you believe beyond a reasonable doubt that defendant armed himself and followed deceased up the road, and you further believe from the evidence beyond a reasonable doubt, that defendant so armed himself, and followed deceased with the intention of renewing or provoking a difficulty, with deceased; and that thereafter he shot and killed deceased, he would not be justified in so shooting and killing deceased, but if done upon express malice, as defined in the charge, he would be guilty of murder in the first degree; and if upon implied malice, as defined, would be guilty of murder in the second degree; and if done under the immediate influence of sudden passion aroused by an adequate cause, as defined in the charge, he would be guilty of manslaughter." Now, the vice here suggested is, that the charge merely requires the jury to believe that if appellant armed himself and followed deceased with the intention of renewing the difficulty, he would be guilty of some offense, no matter what occurred when he came up with deceased. That is, the charge does not require that after meeting with deceased he do some act to bring on the difficulty, but it merely states, if he followed him with the intention of renewing the difficulty, and thereafter he shot and killed deceased, he would be guilty of murder or manslaughter as the case might be. Clearly the charge in question contains this vice; and it is not necessary to cite authorities in order to show it. All the cases hold that mere pursuit of a party with intent to bring on a difficulty, does not deprive one of the right of self-defense; that after he comes up with the party he must then do some act with intent and calculated to provoke the difficulty. Here the court simply instructed the jury, if he pursued him, with the intention to renew the difficulty, and he afterwards killed him, no matter what occurred when they met, he would be guilty of murder or manslaughter as before stated. At first it occurred to the writer that the special objections urged to this charge did not raise the question or point out the particular vice in the charge. But as before stated, we believe the third ground relied on by appellant reaches the vice in the charge pointed out above.
We note in this connection that appellant requested a number of special instructions along the same line, which were given by the court, and which are correct in terms. However, they contravene the proposition announced in the charge above criticised, and taking the charges *Page 649 together were calculated to leave the jury in a confused and uncertain state of mind as to what was the law.
We accordingly hold that because the court gave this charge the motion for rehearing is granted, and the judgment is reversed and the cause remanded.
Reversed and remanded.