I dissent. My principal reason therefor is based upon what, to my mind, is the inapplicability to the facts in the case of either of the instructions as set forth in the majority opinion. The evidence fails to disclose that defendant "sought aquarrel," or that if he did so, it was "with the design toforce a deadly issue." Nor was there any evidence of any "fraud, contrivance or fault" on the part of defendant by which he attempted "to create a real or apparent necessity forkilling." No pretense is made that "by prearranged duel, or byconsent" defendant entered into "a deadly mutual combat" with the person who was killed. Nothing can be found in the evidence to warrant the insinuation contained in the instruction that defendant wickedly or wilfully invited or created "theappearance of necessity, or the actual necessity, which, ifpresent to one without blame, would justify the homicide." *Page 295 In other patent particulars of a similar nature the instructions quoted in the majority opinion were equally faulty in that no evidence was presented upon which they might have been predicated. Especially did such condition prevail with reference to the instruction that "such person or the person in whose behalf the defense was made, if he was the assailant or engagedin mortal combat, must really and in good faith have endeavoredto decline any further struggle before the homicide wascommitted."
Considering the premises, the prejudicial effect of the language occurring in such instructions is apparent.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 13, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 28, 1929.
All the Justices present concurred.