Appellant was convicted of manslaughter, and his punishment fixed at two years in the penitentiary. Appellant and deceased were young men, under 19 years of age, living in the town of Independence, both of good character, and social position. Deceased was, perhaps, high spirited, had had some previous difficulties, and usually went armed. Appellant was exemplary in his life. This was his first difficulty, and he borrowed the pistol used in the homicide, having none of his own. The issue in the case was whether appellant provoked the difficulty which led to the homicide, and, if so, with what intent. The charge of the court was clear, and instructed the jury that, if appellant provoked the quarrel for the purpose of killing deceased, it would be murder, though done in self-defense; if only for the purpose of inflicting a battery, it would be manslaughter. If the interview was requested in a friendly spirit, to settle, a difficulty or misunderstanding, and appellant killed in defense of his life, it would be justifiable homicide. The jury having found manslaughter, the question arises, do the facts proven to have attended the homicide show an intent or purpose on the part of appellant to provoke a difficulty? If deceased was the aggressor, without provocation on the part of appellant, the latter cannot be held responsible. There is no question that one may speak to another about derogatory charges or statements made or circulated by such other person against him, without intending or even desiring to provoke a difficulty; and, knowing such other person is armed, he may also arm himself, not to provoke a difficulty or to produce an occasion for injuring the other, but to act, if necessary, in self-defense. If, then, in an attempt to adjust the trouble or reach an understanding, without any provocation on defendant's part, the insult or charge complained of is not only persisted in, but publicly repeated, and defendant, roused to passion thereby, replies in terms equally insulting, and is immediately attacked, and finally kills, but only in defense of his life, we cannot hold him guilty of any crime. To hold otherwise would be to deny a man the right to notice any insult or interrogate the author of any charge because he would forfeit the right to defend his life if he should be attacked. The tendency of the right to abuse is no answer to the right itself. The fact that one with a grievance arms himself, and seeks an interview with the man who wrongs him, is not necessarily a provocation, nor does it place the injured party necessarily in the wrong. He must also, as said by Judge Hurt in Cartwright's Case, 14 Tex.Crim. App. 502, "willingly and knowingly use language or do acts reasonably calculated to lead to an affray or deadly conflict"; and, unless the acts are clearly calculated or intended to have such an effect, the right of self-defense is not compromitted, even though the party armed himself and went there *Page 7 for the purpose of a difficulty. White's Case, 23 Tex.Crim. App. 164. There is nothing in this record that shows appellant was the aggressor, or that he used language or did anything reasonably calculated to provoke a difficulty. He invited deceased to an interview in a quiet and peaceful manner. They spoke in low tones, inaudible to bystanders fifteen feet away. Deceased first began the difficulty by loudly stating "that what he had said then he said now." There was no question about what he meant, for appellant instantly replied, "If you say I am a damned coward, you are a damned liar." Again deceased repeated the remark, and appellant replied, and then deceased attempted to ride him down with a large and spirited stallion upon which he was mounted, and was only prevented from doing so by appellant catching the reins near the bit. He then drew his pistol, and holding it down by his side, a struggle ensued, deceased endeavoring to jerk his reins away and ride over appellant, both parties talking excitedly. Finally, appellant, using his pistol as a bludgeon, struck deceased, who thereupon drew his pistol and began firing, when appellant shot and killed him. In the record as presented, the deceased appears the aggressor throughout. Enough is shown in the statements of the parties, to show that young Shannon had been insulted, and remarks made about him calculated to bring him into contempt among his associates, and, when he sought an explanation, he was met with a repetition and public avowal of the charge. When he replied in similar terms to the insult, he was violently attacked by an effort to ride him down. Had he killed deceased then, it would have been in self-defense; but he held the pistol down, and only when the effort was continued to ride over him did he begin to use it as a bludgeon, and finally killed, after deceased had opened fire upon him. Defendant acted on the defensive only. But it is insisted by the State that, after the homicide, appellant remarked to Dr. Burford, who told him to go on home, "that any man who ran a hog over him [appellant] or insulted him in the presence of ladies, was left"; and that such a remark was evidence of malice aforethought, and clearly shows that appellant brought on the difficulty for the purpose of killing deceased. It is to be observed that of the ten bystanders, most of whom testified for the State, but a single State's witness testified to this remark. Dr. Burford said he heard no such remark, and the jury, to whom this issue of murder was fairly presented in the charge of the court, practically say they do not believe appellant brought on the difficulty with the purpose of killing deceased; and we think the evidence clearly sustains the correctness of this finding. But, concede the remark was in fact made, it simply tends to prove that appellant had a grievance which impelled him to seek an explanation, to-wit, that deceased had characterized him, in the presence of ladies, as a coward. But the vital question in the case — whether the interview was sought for the purpose of provoking a difficulty — must be clearly shown by the facts attending it, and not alone by the remarks of an excited boy amidst the bloody circumstances of his first difficulty. We do not feel *Page 8 satisfied with the verdict, and think a new trial should have been granted. The judgment is reversed, and cause remanded.
Reversed and remanded.
Judges all present and concurring.