A further consideration of this case (on application for rehearing) convinces us that the statement in the original opinion to the effect, "by appellant's own testimony he was not free from fault in bringing on the fatal difficulty," is ill-advised, and incorrect. The contrary appears. We are of the opinion that the evidence upon this question is not sufficiently free from adverse inferences to authorize the court to give the affirmative charge in favor of the state.
The important question involved should have been submitted to the jury under appropriate instructions by the court, for it was for the jury to determine from a consideration of all the evidence, including that of the defendant, whether or not he was free from fault in bringing on the difficulty, and the burden rested upon the state to show that he was so at fault. This is the law, and the giving of charge 2 at the instance of the state was reversible error, for the reasons stated. This charge in effect places upon the defendant a burden which rested upon the state, and not upon defendant.
Charge 1, also given at the instance of the state, is of similar import. It was misleading and should have been refused.
Application for rehearing is granted. Judgment of conviction is reversed, and the cause remanded.
RICE, J., dissents.