Concurring. — While I concur in affirming the judgment in this case, I do not concur, but dissent, from so much of the opinion as holds the following instruction to be erroneous, viz.:
“If the jury find, from the evidence, that defendant and Thomas Mooney had an altercation which resulted in the death of Miles Stanton, and that defendant commenced the difficulty, or brought it on by any wilful act of his committed at the time, or that he voluntarily, and of his own free will and inclination, entered into the difficulty, then there is no self-defence in the case, and the jury should not acquit on that *566ground. And in such case it makes no difference how imminent the peril may have been in which the defendant may have been placed during the difficulty.”
This instruction has been accepted by the bench as a correct exposition of the law in this state for nearly a half-century, and has received the sanction of this court in the following cases : State v. Underwood, 57 Mo. 50; State v. Starr, 38 Mo. 270; State v. Linney, 52 Mo. 40; State v. Shoultz, 25 Mo. 153; State v. Christian, 66 Mo. 138, 145; State v. Hudson, 59 Mo. 135, 138; State v. Vansant, 80 Mo. 69, 70; State v. Jones, 78 Mo. 327; State v. Brown, 64 Mo. 368; State v. Peak, 85 Mo. 190; State v. Rose, 92 Mo. 201, 207. The opinion, in condemning the instruction above quoted, in effect, overruled the principle enunciated in the cases cited. These •cases establish the proposition that if A voluntarily provokes, by any wilful act of hi.s, a difficulty with B, and voluntarily enters into the difficulty with a purpose to gratify his malice, by killing him, and does kill him, his crime would be murder, and nothing less. If, on the other hand, A commences a difficulty with B, oi&w® brings it on by any wilful act of his, and enters into it of his own free will and accord, with no purpose of taking B’s life, still if, in the difficulty thus provoked, brought on, and entered into, he kills B, while he may not be guilty of murder, he is guilty of manslaughter in some degree to which the evidence in the case may apply. But in either case, whether the difficulty is sought, provoked, and voluntarily entered into, by A, with a felonious or malicious purpose to kill, or without such felonious purpose, there is no self-defence in the case, and he cannot be acquitted on that ground.
The principle announced in the instruction and so repeatedly approved by this court in the cases herein cited is an emphatic declaration to every citizen of the state, that if he violate the law in provoking a breach, of the peace by seeking and bringing on a *567difficulty, and, voluntarily entering into the same, he takes the life of his adversary in the difficulty thus provoked and entered into, he will not be heard to justify or excuse himself on the ground of self-defence, and he must either suffer the penalty of murder if it appear that he brought on the difficulty for the purpose of killing his adversary and provoked an attack as a cover for such purpose; or if he brought on the difficulty without any such felonious or malicious purpose, that he must, if he kill his adversary, suffer the penalty of some grade of manslaughter which the evidence may show it to be. In other words, the principle announced in the instruction is a command to every citizen to keep the peace, and also warns him who breaks it by provoking and entering into a difficulty with another and killing him, that he cannot escape punishment on the ground of self-defence, for some grade of homicide, either for murder or manslaughter, in some of the degrees which the’ evidence and circumstances attending the killing may show it to be. The paffiloctrine of the instruction and of the cases above referred to is sound and' conservative in principle, promotive of good order, and conducive to the preservation of the peace. It affords protection to the law-abiding and threatens certain punishment to -the law-breaker, and I am unwilling to see it shaken in its 1 integrity one jot or tittle, or so modified as either to afford an avenue of escape to the lawless, or so as to withdraw from the peaceful law-abiding citizen any of the protection which it affords him in the quiet walks and pursuits of life.
Crime, as shown by the records of this court and otherwise, is so enormously on the increase as to demand a strict adherence to every principle of law established to punish it, and I am unwilling to give my sanction to a departure from the principle announced in the instruction, and which has so often received the *568sanction of this court. . The opinion, if I understand it correctly, asserts that where a person wilfully brings on a difficulty, and enters into it of his own accord and kills his adversary, that he cannot justify the act at all. This being so I am at a loss to see how the instruction in question, which declares that, when a person kills another under the circumstances above stated, there is no self-defence in the case, and he cannot justify the killing on that ground, can be condemned. If the killer, under such circumstances, cannot justify the act on any ground, how is it possible that an instruction can be erroneous which declares that he cannot justify on a particular ground, viz., self-defence ? Judge Ray concurs with mé in the views above expressed.
SEPARATE OPINION.
Sherwood, J.Under some' of the former rulings of this court which are cited in the above dissenting opinion, the rule, that if the accused “brought on the difficulty or voluntarily entered into the same, that then there was no self-defence in the case, and if death ensued, that then the accused was guilty of murder, no matter what his intention may have been in bringing on the difficulty,” etc., was the iron rule which was laid down by this court, — a rule which was unflinchingly applied to every case of homicide, which was preceded by a quarrel, however sudden or however great the provocation. This statement is fully borne out by the cases cited in the dissenting opinion, and, therefore, the statement made therein, to the contrary, finds no support in those cases. It was because of the fact that all cases of homicide were treated precisely alike in this particular, that induced a minority of this court to question and to combat the monstrously unjust rule in Culler’s case, 82 Mo. 623, and finally induced a majority of this court to *569overthrow that rule in Partlow's case, 90 Mo. 608, in Berkley's case, 92 Mo. 41, and in the present one.
In State v. Christian, 66 Mo. 138, the rule is laid down by Norton, J., with emphasis, that the court should decline to instruct the jury as to any degree of manslaughter, where every fact in the case goes to show that the defendant sought and brought on the difficulty. Similar enunciations can be found scattered through our reports ever since the sound and wholesome principle laid down in State v. Hays, 23 Mo. 287, and State v. Packwood, 26 Mo. 340, was departed from in subsequent cases; where the question of intent in cases of homicide was discarded as wholly immaterial, if the accused “brought on the difficulty.” In view of these later decisions, the statement made in the dissenting opinion, as to the rule of law prevailing in this court in reference to the effects and consequences of bringing on a difficulty, is somewhat singular.