(after stating the facts). The court correctly declared the law on the degrees of homicide included in the indictment, and at the instance of appellant gave his request in regard to voluntary manslaughter, and also declared the law applicable to self-defense.
In regard to the alleged use of insulting language, the court, at the request of appellant, gave the following instruction, 'towit:
“6. Although you may believe from the testimony that just prior to the decedent’s assault upon the defendant, if you find there was one, defendant used insulting and abusive language to or about the deceased in his presence and hearing, yet such language, however opprobious it may have been, would not justify an assault upon the defendant by the deceased; nor will it preclude the defendant from acting in his own self-defense, unless you further find from the evidence beyond a reasonbale doubt, that he used this language to or about the deceased for the purpose of bringing on an attack and an opportunity of killing the deceased or doing him some great bodily harm.”
When these instructions are considered in connection with instruction No. 13, we are of the opinion that the use of the words “no language or conduct however violent” had reference to the language shown to have been used by Patterson just before he started towards appellant; for the court had told the jury, at the request of appellant, that “if they believed from the evidence that at the time the defendant- inflicted the mortal blow or wound deceased was making a violent assault upon him, and defendant was induced or caused to strike said blow from a feeling of anger, fear or terror caused and produced by the deceased’s assault upon him, then you can not convict him of anything higher than voluntary manslaughter.”
The court also told the jury that “it is sufficient if you find from the evidence that it appeared to the defendant, at the time acting without fault or carelessness on his part, that the danger was so urgent and pressing that it was necessary for him to defend himself in the manner he did to prevent deceased from killing him or doing him some great bodily harm.”
The court, by these instructions, told the jury, in effect, that any violent conduct on the part of Patterson which was sufficient to induce an honest belief on the part of appellant, acting without fault or carelessness, that he was in danger of death or great bodily harm, was sufficient to entitle appellant to self-defense, or at least to have his crime reduced to a lower grade of homicide than that of murder.
The appellant did not point out the specific objection in the court below which he now urges to instruction No. 13, and the instruction, under the circumstances, should not be construed as in conflict with other instructions given by the court, but should be read in harmony with them; and the language to which objection is urged, when taken in connection with the immediate context and the other instructions, refers only to the language of Patterson, and not to his acts. The verbiage in question should have been met with a specific objection. If appellant had made such objection, the trial court would doubtless have corrected it or explained it as herein set forth.
Instruction No. 14 was abstract in that it assumed that Patterson “might have made threats against appellant,” which actuated appellant, when there was no testimony in the record to warrant the conclusion that Patterson had made any threats against appellant. But the instruction, in this respect, could not in anywise have prejudiced the cause of appellant, for, if Patterson had made no threats whatever against appellant, his conduct in killing Patterson would be all the more unjustifiable.
There was testimony in the record tending to show that appellant had a grievance against Patterson because of the latter’s alleged conduct in running appellant out of the warehouse. The testimony tends to show that appellant was making complaint against and abusing Patterson just before the fatal encounter. Instruction No. 14 was given to cover that phase of the testimony.
We are of the opinion, in view of the evidence tending to prove that appellant was angry with Patterson and had denounced him as an “old devil,” and a “damned old son-of-a-bitch,” and had said, “If he fools with me he will get his entrails cut out,” that it was a question for the jury, in connection with his conduct in the store immediately preceding the killing, as to whether or not the appellant provoked and voluntarily entered into the combat, and that instructions numbered 15 and 16, presenting this phase of the case, were not erroneous.
If appellant entertained a grudge against the deceased, Patterson, as the proof tends to show, and used language in the hearing of Patterson for the purpose of provoking him to anger and causing him to bring on an attack whereby the appellant might have the opportunity of killing him or doing him great bodily injury, then appellant would not be excused or justified in the killing, and would be precluded from claiming the right of self-defense until he had in good faith withdrawn from the combat as far as he could and had done all in his power consistent with his safety to avoid the danger and avert the necessity of the killing. Here the uncontradicted evidence shows that the appellant willingly entered into the combat, and that he made no effort whatever at any time to withdraw from the same. The doctrine as announced by these instructions has been often approved by this court. Wheatley v. State, 93 Ark. 409; Bishop v. State, 73 Ark. 568; Carpenter v. State, 62 Ark. 286.
Instruction No. 16, when taken in connection with instruction No. 11, given at the request of appellant, is not open to the objection that it substitutes the judgment of the jury for the judgment of the appellant as to the necessity for taking the life of Patterson, as appellant contends. The instructions, taken together, correctly declared the law as announced by this court. Magness v. State, 67 Ark. 603.
Instruction No. 12, as asked by appellant, and as finally amended by the court, was entirely abstract, for there was no evidence to warrant the conclusion that the appellant was assaulted by Patterson with such violence as to make it apparently more dangerous for him to retreat than to stand his ground and resist the assault. There was no evidence whatever that the deceased assaulted appellant with the intent to murder him or to do him great bodily injury. As we have stated, the uncontradicted evidence shows that appellant voluntarily entered into the combat. The undisputed evidence, as we view the record, tends to show that Patterson was only attempting to engage in a fight with the appellant with his bare hands. He took off his coat as he started to the combat, and threw up his hands, showing that he had no deadly weapon, and none was found about his person. True, Patterson was much larger, and perhaps much stronger, than appellant; but nevertheless there was nothing to indicate that he intended a deadly assault upon appellant or to do him great bodily injury. Therefore, the doctrine of standing one’s own ground when attacked with a deadly. weapon and slaying his adversary has no application. But, conceding that, as expressed in the amended instruction, the doctrine was erroneous, it was nevertheless not prejudicial, and, in fact, was more favorable to appellant than he had a right to ask or expect.
The court, having given the instruction, should have permitted appellant’s counsel, if he desired, to argue the instruction as amended; but he did not make a specific request of the court to grant him such permission, and he can not complain here for the first time that it was error in not allowing him to argue the instruction as amended. It does not appear that he asked permission of the court to argue the instruction after 4t had been amended. If he had made such request, and the court had refused it, then he would have been in an attitude to have the alleged error reviewed here.
Appellant’s prayers for instructions numbered 3 and 7, which the court refused, were covered by his prayers numbered 6 and 8, which the court granted.
It is insisted by the learned counsel for the appellant that there is no evidence to warrant a verdict for murder in the second degree, and that, even if there were, the punishment is excessive. The writer concurs in the view that imprisonment in the State penitentiary for eleven years under the evidence as disclosed by this record is excessive punishment, but the majority of the court is of the contrary opinion. Therefore the judgment must be affirmed.