The verdict was authorized by the evidence, and under the facts of the case the failure of the court to instruct the jury on the law of mutual combat was not error.
DECIDED NOVEMBER 7, 1941. REHEARING DENIED NOVEMBER 28, 1941.
The defendant was convicted of the offense of an assault with intent to murder. His motion for a new trial, consisting of the general grounds and one special ground, was overruled. The evidence, while conflicting, authorized the verdict. The special ground assigns error on the failure of the court to give in charge to the jury the law of voluntary manslaughter as related to mutual combat or mutual intention to fight. The court instructed the jury on the law of assault with intent to murder, on the general law of voluntary manslaughter, and on the law of unlawfully shooting at another, but did not charge the law of mutual combat. There are many decisions of the Supreme Court and this court which hold that where there is evidence tending to show that the parties were engaged in a mutual combat, it is error for the judge to fail to charge the law of mutual combat, even though he charged generally on the law of voluntary manslaughter. However, in this case we do not think that the evidence tended to show that the parties engaged in a mutual combat. Mutual combat does not mean a mere fist fight or scuffle. It usually means an encounter with deadly weapons, in which the death of either or both of the parties is imminent. Such a combat must be mutual; both parties must be armed with deadly or dangerous weapons and have a mutual intention to use them. In this case the undisputed evidence shows that the accused had a deadly weapon, a loaded pistol, concealed on his person, and that the person shot and seriously wounded had no weapon of any kind in his hands or on his person. The two men had a sudden quarrel and a scuffle, the defendant was pulled down on the floor by the other man, the defendant falling underneath the other man, and immediately the defendant drew his pistol and shot the man in his face. Under these facts we are of the opinion that the law of mutual combat was not involved and that the failure of the court to charge it was not error, and especially so since the court not only instructed the jury generally on the law of voluntary manslaughter, but specifically on the lesser offense of unlawfully shooting at another. The denial of a new trial was not error.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.
ON MOTION FOR REHEARING.