The only bill of exceptions appearing in the record was reserved to the ruling of the court upon the competency of two jurors who had been summoned on the special venire, and who, upon examination as to their qualifications, were challenged for cause by the defendant; and the challenge being overruled, he then challenged them *622peremptorily: It further appears that defendant exhausted his peremptory challenges. According to the bill of exceptions, neither of these jurors appear from hearsay or otherwise to have, had, established in their minds, such a conclusion of the guilt or innocence of defendant as would likely influence their action in finding a verdict. Code Cr. Proc., art. 636; Grissom v. The State, 4 Texas Ct. App. 384; Rothschild v. The State, 7 Texas Ct. App. 519.
But, if they were subject to challenge for cause, the defendant got rid of them by his peremptory challenges, and they neither sat on the jury nor tried him. True, he says he exhausted his peremptory challenges. Suppose he did ; that fact alone would not entitle him to have his case reversed because some of his peremptory challenges were expended upon incompetent jurors. In addition to the fact that he was compelled to use his peremptory challenge upon a juror who should have been made to stand aside for cause, he must ■ show the further fact that, after the peremptory challenges were exhausted, an incompetent or otherwise obnoxious and objectionable juror, and whom he would not have accepted if he had had further challenges, was forced upon him to his prejudice, and actually sat upon his trial. Sharp v. The State, 6 Texas Ct. App. 650; Myers v. The State, 7 Texas Ct. App. 641; Grissom v. The State, ante, p. 386; McKinney v. The State, post, p. 626. For aught that appears, the jury may have been completed by an unexceptionable juror, called immediately after defendant had exhausted his last peremptory challenge upon the jurors mentioned in the bill. And certainly when the jury which at last tries the prisoner is composed of unobjectionable jurors, he has no just ground to complain.
It is insisted that the court erred in the following portion of the eighth subdivision of the charge, viz.: “ He who seeks and brings on a difficulty with his antagonist, and in such difficulty kills him, will not be justified in law, even though it should appear that his life or person was endangered.” *623This instruction was in harmony with the rule laid down by our Supreme .Court in Gilleland v. The State, where it was said: “ If the defendant voluntarily engages in a combat, knowing that it will- or may probably produce the death either of his adversary or himself, or by his own wrongful act brings about the necessity of taking the life of another to prevent being killed himself, he cannot say that such killing was in his necessary self-defence. But the killing will be imputed to malice, express or implied, by reason of the wrongful act which brought it about, or malice from which it was done. 2 Bishop’s Cr. Proc. 643. Whether the defendant is actuated by malice, or his own wrong has occasioned the necessity on which he slays his adversary, or he does so to prevent the perpetration by the party slain of one of the offences named in the Code (Pasc. Dig., art. 2226), must depend upon the circumstances of each case, and is always ' a question of fact to be determined by the jury.” 44 Texas, 356; Isaacs v. The State, 25 Texas, 174. “The plea of self-defence is not available by one who himself brings on an affray, or who prepares himself for an encounter, in which he intends to wreak his malice.” The State v. Maguire, 69 Mo. 197.
Appellant has no just ground of complaint with reference to the general charge of the court; it was much more favorable than he had any right to expect from the evidence as we read it in the statement of facts. There is not thé slightest semblance of self-defence in the testimony. He provoked the difficulty in the first instance, and inflicted a wound upon deceased with a knife or other instrument. He renews the difficulty again, and, because deceased said he had cut or struck him, he tells him he will kill him if he repeats it; and when deceased, who was warned, repeats it, true to his word, he shoots him down and then flees the country. He has no right to complain of the verdict and judgment finding him guilty of murder of the second degree. Under the facts, he could justly have been found *624guilty of no less degree of culpable homicide. As far as we can see from the record sent up on his appeal, he has had a fair and impartial trial, in which no error was committed requiring a reversal of the judgment, which is in all things affirmed.
Affirmed.