#### Fussell *v.*The State.

1. Merely drawing a pistol in a quarrel, though done by the person who began the quarrel, will not deprive him of the right to use it in self-defence against a deadly attack upon his own life. But drawing the pistol with intent to attack his adversary’s life, or under circumstances calculated to excite in the adversary the fears of a reasonable man that an immediate attack on him was intended, would outlaw the right of self-defence in the other. Hence, it was error to charge the jury that if “the defendant began the difficulty, and drew his pistol first, and [his adversary] drew next hut shot first, the defendant would not be justified in shooting with intent to kill.”

2. The court erred in notgranting a new trial on account of the misdirection above pointed out; but no other ground in the motion would require a new trial, though apparently some slight errors were committed.

June 4, 1894.

Indictment for assault to murder. Before Judge Hunt. Irwin superior court. October term, 1893.

E. D. Graham, Jacob Watson and B. M. Frizzell, for plaintiff in error. Tom Eason, solicitor-general, by Hines, Shubrick & Felder and J. H. Martin, *contra.*

Lumpkin, Justice.

According to the evidence, Dorminy and Dixon were seated together in a Ijuggy near a shelter where reli*79gious services were being conducted. Russell, the accused, approached the buggy and an altercation ensued, in the course of which insulting language was used by both himself and Dorminy. The jury were warranted in finding that Russell began the quarrel, and that he used the first offensive epithet. As Russell was coming up to the buggy, Dorminy placed his hand behind his back, as if in the act of drawing a weapon, and while the exchange of opprobrious words was in progress, Russell drew a pistol, and Dorminy then immediately drew another and began shooting at Russell, who returned the fire, and each shot several times, resulting in the wounding of both. Indictments for assault with intent to murder were returned against both. Dorminy was tried and acquitted. Afterwards, Russell was tided and convicted, and his motion for a new trial being overruled, he excepted.

The court, among other things, charged as follows: “ If you believe from the evidence that the defendant began the difficulty, and drew his pistol first, and Dorminy drew next but shot first, the defendant would not be justified in shooting with intent to kill.” By the words “began the difficulty,” taken in connection with the context, the court evidently meant “began the *quarrel,”*and by the charge above quoted, and other language used, intended to instruct the jury that if Russell did begin the quarrel, and was also the first to draw a pistol, Dorminy, without more, was absolutely justified in drawing and shooting at once, and consequently, that his so doing would not justify Russell in returning the fire, on the idea, as stated in another portion of the charge, that “if Dorminy was justifiable in drawing and shooting, . . . this would be no legal provocation to. the defendant to shoot and attempt to kill Dorminy.”

This was a very close case, and, in our opinion, the court did not correctly and aptly state the law applica*80ble to the real question upon the determination *of*which the guilt or innocence of the accused depended. If, at the very time of drawing his pistol, Fussell actually intended an attempt to take Dorminy’s life, the latter was justifiable in immediately drawing and using his pistol in self-defence; or if, when Fussell drew his pistol, his manner and conduct,and all the attending circumstances, were calculated to excite in Dorminy the fears of a reasonable man that an immediate deadly attack upon him was intended, he was likewise justifiable in drawing and using his pistol for his own protection, whether an .attack upon his life was actually intended by Fussell or not. In either event, Dorminy would have been justifiable in promptly drawing and using his own pistol. If he was j ustifiable in firing at Fussell, the latter could not return the fire and legally claim to be acting in self-defence, fox*, by his own conduct, his right of self-defence would have been fox’feited. On the other hand, if Fussell, in the coui’se of an altercation by woi’ds begun by 'himself with Dornxiny, merely drew his pistol without .at the time intendixxg to make an attack upon Dormixxy’s life, but simply to use the pistol in defending himself in the evexxt a deadly attack should be made upon him by Doi’miny, axxd if, after Fussell drew his pistol, he made no demonsti’ation with it, and thei’e was nothing in his manner or conduct calculated to excite in Dorminy a reasonable fear that Fussell was about to shoot him, then Dorminy would not have been justifiable in immediately attempting to shoot and kill Fussell. The latter, of course, could lawfully defend himself from a deadly attack which his adversary had no x’ight to make. So, if Dorminy drew his pistol and shot at Fussell when thei’e was no i’eal or apparent necessity for so doing, Fussell’s right of self-defence was not cut off. A provocation by mex’e words on the pai’t of Fussell would not have justified Dorminy in drawing and using *81.a deadly weapon. *Boatwright*v. *The State,*89 *Ga.*141. It is, in the present case, a matter of the greatest importance to determine why Bussell drew his pistol, and what he immediately then did. Whether he drew it to meet a deadly attack about to be made upon himself by Dorminy (which attack would not, of course, have been justified by the mere fact that Bussell had used offensive language to Dorminy), or for the purpose ■of following up his insult to Dorminy with a mu rderous attack upon him, is the question upon which the case should really be made to turn. The court attached too much importance to the mere fact that Bussell was the first to draw a pistol. The charge amounted to an instruction that if, after beginning the quarrel, Bussell also drew a pistol, then, *ipso facto,*as matter of law, Dorminy had a perfect right to draw and shoot. This conclusion may, or may not, have been correct as matter of fact. As to this, we express no opinion. But we do not think it was so absolutely a conclusion of law as to justify the court in- so stating to the jury. It was a question which should have been left to their determination. Generally, the drawing of a deadly weapon by one of two parties between whom an altercation is going on might be sufficient to justify the other in believing there was an intent to immediately use it, and in acting accordingly; and in most cases, a jury under such circumstances would probably be authorized to find that an immediate use of the weapon so drawn was intended. This, however, is not invariably true. It is easy to conceive of a case where two parties might be engaged in a quarrel, and one of them draw a deadly weapon without intending to use it at once, or without intending to use it at all unless it should become necessary to do so for his own protection. Suppose, in a given ease, this should appear affirmatively and beyond all doubt. Then, certainly, the other party would not be justified in acting *82as he unquestionably would have a right to do were his adversary manifesting an intent or purpose to use the weapon he had drawn ; and in a case of the kind just supposed, a charge like that in the present case would be obviously inappropriate. As every case must stand upon its own merits, the court should never invade the province of the jury, but should, in each instance, leave them to decide whether an emergency, real or apparent, justifying the use of a deadly weapon, existed. In arriving at a proper conclusion, the jury should take into consideration all the surrounding circumstances; and where they are seeking to do right and render a just verdict, they will be very apt to do so. Under the particular facts of the present case, there are, as we have above indicated, other elements deserving of consideration besides the mere order of time in which the weapons of the contending parties were respectively drawn and used. We do not mean to even intimate whether the jury ought, or ought not, to have concluded that Dorminy was justified in shooting when he did. We do mean to say that the court should have left the determination of this very question to the jury, and not have undertaken to decide it for them. The vice of the-charge was its failure to leave this question to the jury-

A somewhat similar case is that of *Butler*v. *The State,*decided at the last term (92 *Ga.*602), in which it was said that an instruction to the jury in the following language would have been appropriate: “ If the assault upon the accused was made with a weapon likely to-produce death and in a manner apparently dangerous to life, the fact that the accused provoked the assault by opprobrious words would not put him in the wrong' for resisting it so far as was necessary to his *defence;*and a seeming necessity, if acted on in good faith, would be equivalent to a real necessity.”

In the present case, the charge of the court limited *83the law of self-defence, as applicable to Fussell, within lines so narrow that he was deprived of an absolutely fair and impartial trial by jury, as was his right. For this reason, the verdict is set aside.

The motion for a new trial contains many grounds. In so far as the questions presented by them can arise at the next trial, the merits of the case have been substantially covered by what is said above. Some slight errors in addition to the main error already pointed out may have been committed, but none are of sufficient importance to require a discussion of them at our hands, nor would they, of themselves, render the granting of a new trial proper. *Judgment reversed.*