(dissenting) :
I respectfully dissent.
The record in this case demonstrates the ill feelings that existed between Mr. Hendrix and Mr. Cherry. Their disagreements were of long standing and often times volatile. Both men armed themselves with shotguns in anticipation of the confrontation that resulted in Mr. Cherry’s death.
The final meeting between the two men occurred by chance on a portion of Mr. Hendrix’s property next to a road. Hendrix ordered Cherry off the property at gun point, whereupon Cherry armed himself and refused to leave. Hendrix and Cherry faced each other in an armed stalemate. Words were exchanged between the two, and various family members attempted to persuade the men to leave.
When Cherry turned his head in response to Mrs. Doris Black’s scream, Hendrix began firing his shotgun. Hendrix fired once, paused, and then fired three additional shots in rapid succession. After the shooting Hendrix telephoned a close friend and stated he shot Cherry when a distraction caused Cherry to turn his head.
When considering a motion for a directed verdict, it is the lower court’s duty to submit the case to the jury if there is any evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. State v. Massey, 267 S. C. 432, 229 S. E. (2d) 332 (1976).
Based on the testimony, at least two inferences can be drawn which explain why Hendrix shot and killed Cherry: *663(1) that Hendrix acted under a reasonable apprehension of danger, either actual or apparent, in which case the killing was justified; or (2) that Hendrix acted out of malice, in which case the killing was unlawful.
The second element of self-defense requires proof that the defendant actually believed he was in immediate danger of losing his life or sustaining serious bodily harm. This element prevents a defendant from deliberately and maliciously killing his fellow man and then interposing the defense of self-defense because it subsequently appears there was actual danger. Trogdon v. State, 133 Ind. 1, 32 N. E. 725 (1892). See also State v. Herron, 116 S. C. 282, 108 S. E. 93 (1921).
The only evidence in this record regarding appellant’s actual belief are the circumstantial conclusions that can be inferred from his actions. While this circumstantial evidence could have created a reasonable doubt of appellant’s guilt in the jurors’ minds, it does not establish as a matter of law that the appellant killed the deceased because he believed he was in eminent danger.
As stated in Patterson v. State, 253 S. C. 382, 171 S. E. (2d) 235 (1969) cert. denied, 397 U. S. 1069, 90 S. Ct. 1511, 25 L. Ed. (2d) 691:
One of the things a defendant has to affirmatively prove in a plea of self-defense is that the defendant believed that he was in danger of losing his own life or suffering serious bodily harm. It is difficult, if not impossible, to prove what a defendant “believes” unless he does take the stand and testify. Had he [the defendant] not testified he would apparently have been without even a semblance of a defense. 171 S. E. (2d) at 237.
Here, the appellant did not take the stand to testify in his own behalf but chose instead to rely on the other evidence introduced at trial to establish his defense. The testimony and other evidence created a factual question as to whether the appellant shot and killed the deceased in self-defense or *664out of malice. The resolution of factual questions is solely within the province of the jury, not the court.
Additionally, in State v. Graham, 260 S. C. 449, 196 S. E. (2d) 495 (1973) we held on facts strikingly similar to these that the plea of self-defense was not available to a defendant where the circumstances of the killing amounted to mutual combat:
There was ill-will between the parties. They had threatened each other and it is inferable that they had armed themselves to settle their differences at gun point. Under these circumstances, the apparent willingness of each to engage in an armed encounter with the other, sustained an inference that they were engaged in mutual combat at the time of the killing, and required that the issue be submitted to the jury for determination. 196 S. E. (2d) at 496.
The testimony and other evidence created a question of fact for the jury and the trial judge correctly denied appellant’s motion for a directed verdict.
I would affirm.
Grimball, Acting Associate Justice, concurs.