(after stating the facts). It is first insisted that the court erred in giving instruction No. 10 to the jury upon the motion of the State. The instruction is as follows:
“In ordinary cases of one person killing another in self-defense it must appear to the defendant, acting without fault or carelessness on his part, that the danger was so urgent and pressing that in order to save his own life, or prevent his receiving great bodily harm or injury, the killing was necessary, and it must appear also that the person killed was the assailant or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.”
It is claimed that neither this nor any other instruction given in the case told thé jury that the defendant was not compelled to retreat if he was first assaulted by the deceased with a murderous intent. We can not agree with counsel in this contention. The theory of the State was that the parties were separated when they had their difficulty in the pool room, but that the defendant became very angry and approached the deceased in a restaurant on the same night telling him that he would kill him the next morning or as soon as he got anything to kill him with; that it was not the purpose of the deceased to again attack the defendant unless in his own necessary self-defense; that the defendant subsequently armed himself and passed by the deceased while he was standing by the fire at the merry-go-round; that the deceased shifted his pistol from his left to his right hand side and put his hand on it in order to be ready in case the defendant attacked him; that the defendant walked on by without attacking him, and that the deceased made no motion to shoot the defendant; that the defendant again approached the place where the deceased was standing and without warning suddenly pulled his pistol and fired six times in succession at him; that the deceased did not shoot until after the defendant had fired one time. In short, it was the theory of the State that after the first difficulty the defendant armed himself and hunted up the deceased for the purpose of killing him, and was the aggressor throughout the difficulty.
On the other hand, it was the theory of the defendant that the deceased was the aggressor when the fatal rencounter occurred. According to the defendant’s own testimony he had put his pistol in his pocket at the time his brother closed up the pool room and was going to take it to his home in the country. Before starting home he had done some repair work on the machinery of the merry-go-round and had no thought of shooting the deceased, but only intended to pass by the place where he was standing in order to find a vehicle in which to go home. As he approached the deceased the latter pulled his pistol and shot at him and he in turn thenbegan firing at the deceased. The defendant’s theory that the deceased was the aggressor was submitted to the jury in this, as well as the other instructions given by the court. This theory is contained in the clause in which the jury are told “and it must appear also that the person killed was the assailant.” The theory of the defense as well as that of the prosecution was fully and fairly submitted to the jury in this as well as the other instructions given by the court. Moreover the instruction is substantially in the language of an instruction numbered 7, which was approved in the case of Plumley v. State, 116 Ark. 17.
It is next insisted that the court erred in giving instruction No. 9. The instruction is as follows:
“The killing being proved, the burden of proving circumstances of mitigation that justify or .excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the defense only amounted to manslaughter or that the accused was justified or excused in committing the homicide. ’ ’
There was no error in giving this instruction. This instruction is a copy of section 1765 of Kirby’s Digest. Cogburn v. State, 76 Ark. 110, and Turner v. State, 128 Ark. 565.
In the first mentioned case the court said that the section of the statute just referred to is a rule of law to be applied when the killing has been proved and there is nothing shown to justify or excuse the act. The court said further that in such a case it may well be presumed that there was no justification, or the defendant would have shown it. In the present case it was shown that the defendant did the killing. In fact, he admitted having done so. Other instructions were given by the court which fully covered the subject of reasonable doubt.
It is next insisted that the court erred in refusing to give instruction No. 6 asked by the defendant. The instruction is as follows:
“You are instructed that under the law a person does not have to wait until the party attacking has actually done him violence before he has a right to strike in his own self-defense, but if the defendant as a reasonably prudent person acting upon the facts and circumstances as they appeared to him, and from his standpoint, actually believed that the deceased was attempting to kill him or do him great bodily injury, then the defendant had the right to defend himself, so if you believe from the evidence in this case that the defendant acting as a reasonably prudent person at the time he killed the deceased, and upon the facts and circumstances as they appeared to him and from his standpoint; believed that the deceased was attempting to kill the defendant or do .him great bodily injury, then the defendant had the right to stand his ground and defend himself and shoot the deceased at the time.”
The court did give at the request of defendant instructions numbered 5, 7 and 9. Instruction No. 5 is as follows:
“You are instructed that if the defendant believed that it was the intention of the deceased to Mil him or do him great bodily injury, and that the defendant without fault or carelessness on his part, shot the deceased, he was justified is so doing; that it was sufficient if the defendant, acting without fault or carelessness on his part, honestly believed that the killing was necessary, if he acted under such- circumstances as made it reasonable to entertain that belief. ’ ’
Instruction No. 7 reads as follows:
“You are instructed that to justify a killing in self-defense, it is not essential that it should appear to the jury to have been necessary; but it is sufficient, if the defendant honestly believed, acting upon the facts and circumstances from his standpoint, and without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary to save his own life or to prevent him from receiving great bodily injury. ’ ’
Instruction No. 9 reads -as follows:
“The jhry are instructed that, in passing on the question as to whether the defendant was acting in his necessary self-defense, you are to consider his conditions and surroundings at the time, and determine whether the circumstances and surroundings were such as to induce in his mind an honest belief that he was in danger of losing his own life or of receiving great bodily injury at the hands of the deceased, and if you believe from the evidence' that such was the case, and that the defendant at the time fired the fatal shot, while acting under such belief, and that he acted with due caution and circumspection and without negligence then it will be your duty to acquit the defendant. ’ ’
A comparison of these instructions which were given by the court at the request of the defendant with instruction No. 6 which was refused will show that the matters embraced in the refused instruction were fully covered in those given by the court at the request of the defendant. His theory of self-defense was fully covered in these and other instructions given by the court.
We find no prejudicial error in the record, and the judgment will be affirmed,