ON REHEARING.
We are urged in the application for rehearing to reexamine the questions presented in this case, and we have again painstakingly read the record in connection *57with appellant's brief, and application for rebearing, and find no reason to change the conclusion heretofore announced. If there was no evidence in the case tending to show that defendant was at fault, other than that tending to show that the defendant shot before a real impending necessity arose for such defensive action on his part, refused charge 2 embodies a correct statement of the law as applicable to the cause. But there was other evidence tending to show that defendant was not entirely free from fault. The deceased had threatened to kill him, and he knew of the threat, because his own witness told him of this threat a few days before the killing. Knowledge of this threat, no doubt, prompted the defendant to arm himself in anticipation that the deceased would attempt to carry the threat into execution, and, with this condition confronting him, he at the invitation of the deceased stopped and hitched his horse on the roadside, and engaged in an altercation with the deceased about some of the very matters that had caused the enmity between the defendant and the deceased and had given rise to the violent threat of the deceased to take defendant’s life. While the evidence shows that the deceased struck the first bloiv, it also shows that he was not armed for deadly combat, as was the defendant.
One of our most eminent judges, speaking for the Supreme Court of this state, said: “If one assaulted, suddenly and under the maddening influence of the blow slays his assailant, and there is nothing else in the transaction, this is manslaughter, and not murder. But murder 'is frequently committed during personal rencoun-ters into which the parties enter mutually, or in many cases in which the party slain strikes the first blow. Murderers sometimes provoke an enemy or an intended victim to assault them, that, under the protection which *58the law is supposed to furnish them, they may wreak vengeance upon him who, by this contrivance, is made to appear to; be the aggressor. A homicide thus perpetrated is a most atrocious murder in the first degree.’ ”
Scales v. State, 96 Ala. 75, 11 South. 124.
While apparently the deceased was the aggressor, was it. not for the jury tinder the evidence in the case, and would they not have been justified in reaching the conclusion that the defendant, anticipating trouble, hitched his horse after crossing the bridge, knowing that this enemy was coming, and that he (the defendant) was armed for the fray? Was the defendant absolutely free from fault? Lid not the principle that regards human life sacred and operates to preserve peace and good order on that occasion suggest that it was defendant’s duty not to stop and wait? Under the evidence, the Question of defendants freedom from fault in bringing about the necessity to take life, if they found such necessity, was for the jury.
While a positive intention to kill is not an essential element of manslaughter in the first degree, such intention is not at all foreign to this offense, but may enter into it as one of its elements. In order to constitute the offense, there must be a positive intention to kill, or the evidence must show that the defendant voluntarily set in motion unlawful force which ordinarily and in the usual course of events may result in great bodily harm, and if thereby the death of a human being is accomplished it is at least manslaughter in the first degree. Any evidence tending to show a positive intention to kill, such as that the defendant had cause to anticipate that a difficulty would occur, and, thus anticipating, arms himself with a deadly weapon which he carries about his person, is material, in connection with evidence showing that the anticipated difficulty actual*59ly occurred, and the defendant used such weapon to accomplish the death of his adversary. The evidence in this case, as we have heretofore held, was sufficient to authorize the inference that the defendant armed himself for this very occasion, and for this reason the argument of the solicitor was proper.
This admissibility of the testimony of the witness Edna Whitten given on the preliminary trial was not urged in appellant’s brief, and, while this question was considered, it was not treated in the opinion disposing of the case. The question is presented thus: This witness, an unmarried woman, was examined on the preliminary trial of the defendant and testified, “He- [deceased] told me he was going to hill Charlie [the defendant], shoot his heart out, the next time he saw him,” that this threat was made at 2 o’clock p. m. on the day of the killing, and the evidence shows that the killing, occurred between sundown and dark. The evidence further shows that after this witness gave her testimony on the preliminary trial she became the wife of the defendant, which rendered her incompetent to testify in defendant’s behalf even as to facts occurring before her marriage.-Elmore v. State, 140 Ala. 184, 37 South. 156; Mickle v. State, 21 South. 66. Under the English common law, the courts seldom, if ever, admitted the testimony of a witness given on a former trial, except in case of his death; but a review of the authorities shows that the constant tendency has been to relax this strict rule, “in order to prevent a failure of justice,” and it seems-to be reasonably well settled, although the authorities are not entirely uniform, that if the right of cross-examination has been exercised, or full opportunity afforded therefor, such evidence is admissible: (1) Where the witness is dead; (2) is insane or mentally incapacitated; (3) is shown to be beyond the seas; (4) is *60kept away by tbe contrivance of tbe opposite party; (5) bas'gone beyond tbe jurisdiction of tbe court, or bis personal attendance is unobtainable by tbe exercise of due diligence; and (6) where tbe witness is alive, and his personal attendance may be obtained, if be has been rendered incompetent as a witness by subsequent occurring facts for which tbe party offering tbe testimony is not responsible, and over which be bad no control.—Pope v. State, 183 Ala. 61, 63 South. 71; Harwell v. State, infra 68 South. 500; 2 Chamberlayne, Mod. Ev. § 1624; Jones on Ev. §§ 341-343; Stephens on Ev. art. 32; 16 Cyc. 1101; Burton v. State, 107 Ala. 71, 18 South. 240; Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244; Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672; Wells v. Insurance Co., 187 Pa. 169, 40 Atl. 802. But we have found no authority bolding that, where tbe proponent by voluntary act has placed tbe witness beyond the jurisdiction of tbe court, or otherwise rendered personal attendance unobtainable, or by such voluntary act of tbe proponent tbe witness has become incompetent, be is entitled to make proof of tbe testimony of such witness on tbe former trial and we confidently assert that no such authority can be found. Tbe very reason upon Avbicb tbe rule of admissibility is rested is that tbe personal attendance of tbe witness is unobtainable through no fault or voluntary act of tbe party proposing tbe testimony, and for this reason it would be an act of injustice not to receive tbe evidence. Where tbe reason of tbe rule ceases, tbe rule also- ceases. Tbe incompetency of tbe witness was occasioned in this case by tbe voluntary act of tbe defendant in marrying her and making her bis wife, and be was not entitled to offer her testimony given on tbe preliminary bearing of tbe case.
Tbe application for bearing is overruled.