On Rehearing
BRETT, Justice.This case has caused us great concern. It has been .extensively briefed by the defendant, but neither on the original hearing nor on this rehearing have we had a brief on behalf of the state. If the matter herein on petition for rehearing had been presented in the defendant’s brief in the original hearing, the state’s failure to respond would have been considered as a concession and the case reversed. Instead, as it was presented, we felt the case should only be substantially modified and affirmed. On this rehearing the defendant again briefed the case although the state ignored the matter. We did not let the defendant’s brief suffice, but have examined 'the law extensively on the subject that justice according to law might be rendered. Hence, our conclusions hereinafter set forth.
The two sections of the statute involved herein are 21 O.S.A. sections 643 and 645, reading respectively as follows:
“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases. * * * When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense. * * *
“Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault and battery upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in a county jail not exceeding one (1) year. R.L. 1910, § 2344; Laws 1957, p. 161, § 1.”
It is apparent that these sections are concerned with the “use of force or violence by one person against another”, hence, they must be construed together.
The gist of section 643 is self-defense in attempting to prevent an offense against the person, but the use of such force or violence, under such premise, is limited to not more than sufficient to prevent such offense. Under the provisions of section 645, this right is further limited by the terms “justifiable” or “excusable”. Under these conditions it clearly appears that the use of force or violence is lawful in defense of one’s person, provided the use of it is reasonably designed to prevent one from barbarously and needlessly injuring one’s adversary. This means a citizen is not required to sit on his hands when he is about to become the victim of an assault and battery, but he may resort to appropriate means to resist the force about to be applied. ■ Nevertheless, section 645 brands the citizen with the mark of a felon when he resorts to the use of force without justifiable excuse or cause. These provisions of the statute were not briefed in the first instance by the defendant, and we repeat, not briefed at all by the state.
Applying this construction to the case at bar, the victim of the shooting herein was twice interrupted in his roadside visitation with his girl friend by the dropping of firecrackers in the vicinity of his automobile, which put him in fear of bodily harm. The defendant and his associate then withdrew and drove away. The matter should have rested there, but no, the victim stepped on the gas, “gunned his car”, overtook the defendant’s car, drove *439.him to the side of the road, putting his car in position to block the defendant’s passage, then jumped out of his car, and according to all the unbiased witnesses, assaulted the defendant with vile language and started to pull the defendant out of his car. After a scuffle a shot was heard and the victim was wounded. The defendant testified that he told the victim to “stand back, stand back, I have a gun”.
These facts bring the case clearly within Moore v. State, written by the late Judge Matson, 25 Okl.Cr. 118, 218 P. 1102, 1105, not discovered by the court or heretofore called to our attention by the defendant, wherein this court said:
“ * * * It must be understood in this connection that it is intended not to be held, and that we do not hold, that the right of self-defense can never arise at any stage of a difficulty when one is defending himself against dangers of any kind which he may have unlawfully provoked. In all cases where one has withdrawn from the affray or difficulty at far as he possibly can and fairly indicates his desire for peace, and is thereafter pursued by the other party who renews the difficulty, his right of self-defense, though once lost, is revived and may be successfully pleaded by him, and thereafter his actions will be justified even to the extent of taking human life if necessary * *
The rule is correctly stated in both 6 C.J.S. Assault and Battery § 92 subsec. (4), p. 947, notes 97-98, as well as in 40 C.J.S. Homicide § 121, p. 995, notes 92-95, and cases cited thereunder. It is concisely stated in Parker v. United States, 81 U.S.App. D.C. 282, 158 F.2d 185, approving such an instruction to the jury. The rule in homicide cases is so applicable to the case at bar we quote from it as follows:
“Where one who has provoked a combat abandons or withdraws from it in good faith, and not merely for the purpose of gaining advantage, and by his conduct clearly shows his desire to decline any further struggle, his right of self-defense is restored, and if thereafter he is pursued by his adversary, he is justified or excused in killing him if necessary to save himself from death or great bodily harm, although the whole transaction consists of but one combat or assault. In order that the right of self-defense may be restored to a person who has provoked or commenced a combat, he must attempt in good faith to withdraw from the combat. He must also in some manner make known his intention to his adversary * * * ”
In the case at bar, the defendant had withdrawn from the scene in full retreat, which this victim could clearly observe. As was said in People v. Button, 106 Cal. 628, 39 P. 1073, 1075, 28 L.R.A. 591:
“If the subsequent acts of the attacking party be such as to indicate to a reasonable man that he in good faith has withdrawn from the combat, they must be held to so indicate to the party attacked. Again, the party attacked must also act in good faith. He must act in good faith towards the law, and allow the law to punish the offender.' He must not continue the combat for the purpose of wreaking vengeance, for then he is no better than his adversary. The law will not allow him to say, T was not aware * * * of such withdrawal. If the party assailed has eyes to see, he must see; and, if he has ears to hear, he must hear. He has no right to close his eyes or deaden his ears * * ⅝ > »
It is clearly apparent that the victim of the original assault pursued this defendant for the purpose of wreaking vengeance, and in so doing he was in no better, but possibly worse, position than Townley, in light'of all the facts. See in this connection State v. Moneado, Mo., 34 S.W.2d 59, 61, clearly in point herein; wherein the court held:
“ * * * According to the state’s evidence, defendant began the difficulty,. and its-evidence is subject to the *440inference that defendant did not injure or mortally wound deceased until after he had abandoned the conflict, and until he considered it necessary to use force to protect life and limb. We think an instruction involving that principle should have gone to the jury, and, consequently, the action of the court constituted prejudicial error.”
See also State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725, so holding.
Under the foregoing facts and the rule of Moore v. State, supra, and other cases, the defendant was entitled to have an instruction clearly defining the law as to whom, at the time of the shooting, was the aggressor. In fact, this went to the very heart of the matter, for if the jury, under proper instructions, found that the defendant had withdrawn from the scene of the original assault or disturbance of the peace and was thereafter pursued in a spirit of vengeance by the victim, who renewed the difficulty, the defendant’s right of self-defense was available to him, and the jury should have been so instructed.
The trial court gave instruction No. 7 defining aggressor as follows:
“You are instructed that the term ‘aggressor’, as that term is used in these instructions, means one who, by his or her wrongful conduct, provokes or brings about an altercation.”
We find no fault with this definition as an abstraction, except when applied together with instruction No. 12 reading in part as follows:
“You are instructed that the right of self-protection is given to every citizen but this right cannot be pleaded as a defense and relied upon for an acquittal by one who, himself, is the aggressor or by one who enters voluntarily into a difficulty armed with a deadly weapon no matter how great his danger or how imminent his peril may become during the course of the difficulty. * * * ”
In this instruction the court assumed that the defendant was the aggressor and gave no consideration to the fact that he was leaving the scene after the firecracker incident, and was pursued by the victim who, himself, had forsaken his lawful role and become, himself, the aggressor. In light of the rule laid down in Moore v. State, supra, and other authorities, the court’s instruction No. 12 precluded the jury from giving proper consideration to the all-important issue of the defendant’s right of self-defense and placed him in the role of a provoker under instruction No. 7, notwithstanding his peaceful retreat from the scene of the original provocation or firecracker assault. It was defendant’s fundamental right to have the jury properly instructed on this material issue, which omission may have prejudiced the defendant in a fair consideration of his lawful rights and it was reversible error for the trial court not to have so instructed the jury. Adams v. State, 93 Okl.Cr. 333, 228 P.2d 195. In Anderson v. State, 90 Okl.Cr. 1, 209 P.2d 721, 722, this court said:
“Where there is a correct instruction upon a material question in a case, and in another portion of the instructions there is an incorrect statement of the law, upon the same question, it cannot be said that the law has been clearly and fully given to the jury, and reversible error has been committed.”
It is defendant’s right under such conditions to raise the issue for the first time on appeal in such case. Hall v. State, Okl.Cr., 316 P.2d 620, hence, our consideration, notwithstanding his failure to object at the trial to instruction No. 12.
We are of the opinion the applicable law herein is that despite the fact the defendant was armed with a pistol unlawfully, it does not deprive him of the right to use it in his necessary self-defense, if without that fact the right would have existed. In other words, if without the pistol his right of self-defense existed, the fact that he had it, even though unlawfully, would not defeat his right to use it if the facts warranted its use for his necessary protection. If, however, he was arm*441ed with the pistol for the purpose of aggression as incident to this provocation, which brought on the difficulty, then such fact would deprive him of his claim of self-defense. If, however, as the facts seemed to have developed, he may have been in possession of the pistol for another purpose and for the purpose of self-defense in anticipation of possible attack from another source, and not an instrument of aggression incident to the provocation herein, he may assert his right of self-defense. In this connection, there is some evidence for the defense that the pistol was not possessed as an incident of aggression incident to the provocation herein, but otherwise for self-protection. The foregoing rules must be considered in light of all the facts, such as the reasons for possession of the pistol and the fact that the defendant, under this record, had abandoned the aggravation and was in retreat, which the circumstance may have evinced a clear intent to abandon the incident. 40 C.J.S. Homicide § 119, p. 992 (Carrying Firearms). These are all matters for the consideration of the jury, under proper instructions, State v. Malone, Mo., 301 S.W.2d 750, which should have been given by the trial court.
The defendant next seeks what he calls diminution of the record on appeal by inclusion in this record certain matters that occurred in the trial of another separate and distinct case in order to demonstrate what he contends is an arbitrary rule of court, the effect of which is to deny due process. The procedure the defendant seeks to invoke is both daring and novel. The matter sought to be included in this case was in relation to a statement appearing in the other unrelated case concerning the rules of the court as applied in cases where suspension of the sentence was sought. The alleged statement which the defendant seeks to inject into this case is taken from Gillespie v. State, Okl.Cr., 355 P.2d 451. It was tried by a judge not the same who tried the within case. The statement in part reads as follows:
“The court * * *:
“ ‘When you go to trial in this court before a jury and you are convicted, you don’t get a suspended sentence unless the jury insists on it in their verdict, and I think you are all familiar with that. The next question is, how much should he receive. You just don’t get a suspended sentence, you are not gambling with me’
“The court * * *:
“ ‘Well, I am not going to suspend a sentence for anyone who goes to trial before a jury in this court and is convicted, unless the jury insists upon it in their verdict. Now, everybody knows that, as do all of the other judges. All right, that’s the end of that.’ ”
Thus the defendant seeks to support the record he failed to make in this case by the record in another case on the theory that we will take judicial cognizance of our own records: Ex parte Collins, 76 Okl.Cr. 163, 135 P.2d 61; Coburn v. State, 78 Okl.Cr. 362, 148 P.2d 483; Jones v. State, Okl.Cr., 341 P.2d 616. We may take judicial notice of our own records in a proper case, but to do so herein would constitute an ingenious attempt on our part at legalistic transfusion from a live record into a dead one that languished and died for lack of proper preservation or preparation. The defendant admits that he did not preserve the question in the trial of his case. The office of a suggestion of diminution of the record is to perfect the record in the appellate court so that it may correspond in all particulars with the original on file in the office of the clerk of the trial court. Fuller v. Fuller, 197 Ga. 719, 30 S.E.2d 600. The matter we are asked to engraft on the record before us might have been pertinent through some legalistic contortion had it been made a part of the record in trial court in support of the question now presented to us. It might have supported the contention that the trial court arbitrarily refused to consider the defendant for sus*442pended sentence under the provisions oí 22 O.S.A. § 991 since it appears that under the law the defendant may have been eligible for consideration for such a suspended sentence. The defendant contends that the trial court arbitrarily and capriciously refused to consider his application for a suspended sentence solely because he had elected to stand trial instead of pleading guilty to the offense and refused to hear the matter as a circumstance, for the exercise of judicial discretion. In effect the defendant contends that the situation was controlled by rule of court and not dictated by reason and conscience of the judge to attain a just result based upon the law and the conditions of the case. He relies upon the proposition of a lack of valid exercise of judicial discretion. 48 C.J.S. Judges § 44 p. 1008, notes 73-74:
“Broadly stated, the judicial discretion of a judge * ⅜ ■* and its valid exercise connotes direction by the reason and conscience of the judge to a just result, taking account of the law and the particular circumstances of the case, Branden v. Board of Com’rs of Town of Montclair, 124 N.J.L. 135, 11 A.2d 304 and precludes capricious or arbitrary 'action.”
In re Welisch, 18 Ariz. 517, 163 P. 264, 265. In re Martin, 170 Mise. 919, 11 N.Y.S. 2d 607, 608, 609, it is concisely defined: ‘
“Judicial discretion is not mere ar-, ⅛ bitrary rule conferring on judge right to make judicial determination blindly, nor palliation for capricious discrimination, but is regulated in. a measure by precedence.”
Also Vickers v. Phillip Carey Co., 49 Okl. 231, 151 P. 1023, L.R.A.1916C, 1155 and Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910, 911 stating:
“ ‘Judicial discretion, said Coke, is never exercised to give effect to the mere will of the judge,-but to the will of the law. ■ The judge’s proper function, when using it, is to discern according to daw what is just in the premises.'"
The defendant intimates in the case at bar that the trial court may have permitted the will of the judges, as expressed in the rule of the court, to supercede the statutes and the court’s discretion, which Lord Mansfield said, “means sound discretion guided, by law.” The record in this case, however,, is sought to be established by diminution by “robbing of Peter to pay Paul” process. It is vague and uncertain as to what actually transpired at the time of trial. It does,, however, create a strong suspicion “de-hors”' this record that the rules of the District Court of Oklahoma County may provide that where a person stands trial before a. jury he forfeits his right to make application for suspended sentence. Upon that premise the defendant asserts that he was-denied due process of law in that the law is. being applied in an unconstitutional manner. He cites in support thereof Griffin v. People-of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. -891; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Shelley v. Kraemer, 334 U.S. 1, 68-S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441. Defendant says that the prohibition of the equal protection clause of the 14th amendment extends to all cases of invidious discrimination. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485; Dowd v. United States, 340 U.S. 206, 71 S.Ct. 262, 9$ L.Ed. 215, 19 A.L.R.2d 784; Cochran v. State of Kansas, 316, U.S.. 255, 62 S.Ct. 1068, 86 L.Ed. 1453. He contends that where due process or constitutional rights are involved the court may go behind and beyond the record to test jurisdiction. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. While this is a challenging thought, on the record thus presented we do not- believe that the matter is properly before us; notwithstanding i-t has a meritorious ring when viewed without the aid of a brief from the state. But we can see no end to the possibility of interminable confusion if the record' of one case can be supplemented or added to another case record under the guise of diminution. However, in view of the necessity of reversal on *443other grounds it is not necessary that we decide this matter.
On the ground of failure of the trial court to properly instruct the jury the cause is reversed and remanded for a new trial.
POWELL, P. J., concurs.
NIX, J., not participating.