The appellant was charged by indictment with an assault with intent to murder one John P. Hunter, in Collin County, on July 20, 1878. On the trial in the District Court, the accused was convicted of an aggravated assault, and fined $500 ; and from the judgment prosecutes this appeal.
The questions of importance arising upon the record, and discussed in the brief of the appellant, are presented in the first and fourth errors assigned, as follows: “ 1. The court should have granted defendant a new trial, because the verdict of the jury is contrary to the evidence, in this: the evidence in behalf of defendant shows that, immediately before he assaulted Hunter with a pistol, the acts and declarations of Hunter were such as to reasonably induce defendant to believe that he was in immediate and imminent danger of death, or great bodily harm, at the hands of said Hunter; and because there was no reason why the jury should disregard said testimony. * * * 4. Because of error of the court in refusing to give instructions marked No. 1, at the instance of the. defendant, because it reasonably appeared from the evidence that, immediately preceding the time that defendant assaulted Hunter with a pistol, from the acts and declarations of Hunter, he was about to draw and use a pistol upon the defendant; and it would make no difference in law whether Hunter then had a pistol or not.”
In connection with the subject embraced in these assignments of error, a question is raised as to a ruling of the court upon the evidence. A bill of exceptions recites that, the “ defendant proved by the witness A. Gr. Cummins that, he knew the general reputation and character of John P.. Hunter, the prosecuting witness, in rows and difficulties ; and then asked witness the following question: ‘ From your knowledge of Hunter’s general reputation, do you think he would be likely, in a difficulty, to use a weapon ? ” The answer to which was objected to by the county attor*178ney, for the following reasons, to wit: 1st. The form in which said question was asked. 2d. The matter thus sought was irrelevant. 3d. Because said question confined the witness to his general character when in a difficulty; which objections were sustained by the court, and the answer to said question was not permitted to go in evidence before the jury.” And to the ruling the defendant took a bill of exceptions.
In disposing of this question, it is deemed sufficient to say that, in considering the subject set out in the bill of exceptions, in connection with other portions of the testimony of the witness Cummins, and the testimony of other witnesses on the same subject, as set out in the statement of facts, we are of opinion that the accused had the benefit of all the testimony he was entitled to under the provisions of the Code. The language is this: “In every instance when proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of ldnd and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made.” Penal Code, art. 612 (Pasc. Dig., art. 2270).
It will readily be seen that this provision of the Code relates to, and follows in immediate connection with, what is said on the subject of justifying homicide on the ground of threats, as follows: “When a defendant, accused of murder, seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats,, but the same shall not be regarded as affording a justification for the offence, unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat as made.” [See the article of the Code above referred to, which is followed by the extract first above set out.]
*179Whilst it is evident this article of the Code has direct reference to cases of murder, or, as expressed in the Code, “ when a defendant, accused of murder, seeks to justify himself on the ground of threats,” etc., still no reason is seen why the principle enunciated would not apply with equal force, in a proper case, when one is on trial for an assault with intent to murder.
The witness Cummins, it appears from the statement of facts, was permitted to testify, without objection, that he “ had known Hunter for fifteen years ; knew his reputation ; in rows he is a very dangerous man, and has the reputation of generally going armed.” There was no such error in not permitting the witness to answer the question set out in the bill of exceptions as would have called for the setting-aside of a verdict. There was no evidence that the party assaulted had, previous to the rencontre, made any threat to take the life of the person assaulted.
It is not questioned that, when great personal violence against the person or the life of an individual has been threatened, and where the person who made the threat manifested, at the time the person against whom the threat has been uttered acts, an intention to execute the threat so made, and it be further shown that the person making the threat is a man of violent or dangerous character, and might reasonably be expected to execute a threat made, the person threatened may stand on his defence. But this is not such a case. Here the defence seems to be, that after the parties had met, and had exchanged blows with their fists, the assaulted party, it is contended, made some motion or gesture from which, it is claimed, the defendant inferred that Hunter was about to draw a pistol, and that those appearances were reasonably calculated to create the impression on the mind of the defendant that he, at the time those alleged demonstrations were made, was in imminent peril of losing his life, or sustaining serious personal injury at the hands of Hunter.
*180To our minds, this question, whether this state of facts really existed or not, was purely one of fact, addressed to the consideration of the jury, under proper instructions from the court. If it was a case of mutual combat, then, by the law, in order to reduce the offence from murder to man slaughter, it must appear that the contest was waged upon equal terms, and that no undue advantage was sought or taken by either side; for, if such is the case, malice may be inferred, and the killing amount to murder. King v. The State, 4 Texas Ct. App. 54, citing 24 Cal. 27. And so, in the present case, if death had ensued, under the facts detailed by the witnesses the killing would have been murder and not manslaughter ; and hence the testimony would support a verdict of guilty of even an assault with intent to commit murder. See, also, on this subject, Wilson v. The State, 4 Texas Ct. App. 637, and authorities there cited.
The judge who presided at the trial properly comprehended the law of the case, as made by the proofs, and in the charge properly instructed the jury. As to whether there was sufficient evidence to support the charge, or not, was a question properly submitted; and, the jury having passed upon the evidence, we are of opinion that the court did not err in refusing a new trial. Nor do we believe that there are any just grounds of complaint against the charge of the court, or any error in refusing the special charge asked by the defendant. The general charge was an able and eminently fair and accurate enunciation of the law of the case, and covered every legitimate view of the evidence, and all the reasonable deductions to be drawn from the testimony of the witnesses. If there was error at all in the charge, it was in being more favorable to the accused than he was entitled to.
On the vital points discussed by counsel, the most that can be said for the appellant is, that there was some conflict in the testimony. In such a case we would not be warranted in invading the peculiar province of the jury by *181setting aside the verdict, it having been found upon sufficient testimony.
It is claimed, both in the motion for a new trial and in the assignment of errors, that counsel for the State, in his closing argument to the jury, made use of improper arguments and language in order to stimulate the jury to return a verdict of guilty.
It does not appear that any effort was made to stay the course of argument, or that the accused asked permission to reply. These matters must largely be left to the discretion of the presiding judge, and are not to be revised on appeal, except in a clear case of abuse of that discretion. It is fair to presume that the jury remembered and acted upon their oaths as jurors, and found their verdict upon the evidence, rather than upon any thing else.
From the whole case as made by the testimony, we fail to discover any material error m the proceedings prejudicial to the rights of the appellant to a fair and impartial trial under the law.
The amount of the fine being clearly within the limits prescribed by law, the verdict ought not to be disturbed because of the amount of the fine imposed. The judgment of the District Court is affirmed.
Affirmed.