I cannot concur in the view that the verdict of the jury in this case is wholly unwarranted by the evidence.
It is not clear that the defendant, at the time of the homicide, was in the peaceable and exclusive possession of the disputed premises. Deceased, or those he represented, had at least a scrambling possession; not? such a possession, certainly, as would have justified him in resorting to extreme measures in the attempt to defend it, but certainly a show of possession backed by a claim of right. He was standing on the land, at a gap in the fence, where he had gone armed with a deadly weapon, determined to prevent the defendant from entering. The defendant, equally armed and equally determined, *41accompanied by bis son, approached with the manifest purpose of going on the land to harvest the crop. The parties were bitter and open enemies. Each had insulted and threatened the life of the other, and each at the time plainly declared to the other what his present purpose was,—the one to enter, the other to resist his entry. Each also plainly notified the other that he would act at his peril.
Immediately ensuing these mutual threats, pistols were drawn on both sides, and the firing commenced. The preponderance of the evidence certainly is that deceased drew first,—though this is not perfectly clear,-—and all the evidence is that he fired first, though not until defendant’s son was in the act of seizing him.
After the struggle commenced, neither party had an opportunity to withdraw, or to notify his adversary that he declined further contest, and probably neither party desired to do so. The natural md inevitable result was the death of one of the comba. ,nts.
Under these circumstances, it seems to me that the jury may well have found that the case was one of mutual combat, voluntarily entered upon under circumstances insufficient to justify either party, and therefore that the defendant’s plea of self-defense, or defense of his son, could not avail him, he and his son having entirely failed to manifest the slightest wish to withdraw from the combat before its fatal termination.