—Aрpellant was convicted of manslaughter, and his punishment fixed at two years in the penitentiary. Appellant and decеased were young men, under 19 years of age, living in the town of Independence, both of good character, and social position. Deceased was, perhaps, high spirited, had had some previous difficulties, and usually went armed. Appеllant was exemplary in his life. This was his first difficulty, and he borrowed the pistol used in the homicide, having none of his own. The issue in the casе was whether appellant provoked the difficulty which led to the homicide, and, if so, with what intent. The charge of the cоurt was clear, and instructed the jury that, if appellant provoked the quarrel for the purpose of killing deceased, it would be murder, though done in self-defense; if only for the purpose of inflicting a battery, it would be manslaughter. If the interview was requested in a friendly spirit, to settle a difficulty or misunderstanding, and appellant killed in defense of his life, it would be justifiable homicide. The jury having found manslaughter, the question arises, do the facts jn'oven to have attended the homicide show an intent or 2mipose on the 2>art of a2>pcllant to 2>rovokc a difficulty? If deceased was the aggressor, without 2>ro vocation on the 2>art of aipellant, the latter cannot bo held resрonsible. There is no question that one may S2>eak to another about derogatory charges or statements made оr circulated by such other 2>erson against him, without intending or even desiring to 2»'Ovoke a difficulty; and, knowing such other 2>erson is armed, he may also arm himself, not to 2irovoke a difficulty or to 2>roduce an occasion for injuring the other, but to act, if necessаry, in self-defense. If, then, ,in an attempt to adjust the trouble or reach an understanding, without any 2>rovocation on defendant’s рart, the insult or charge contained of is not only j>ersisted in, but publicly ideated, and defendant, roused to 2>assion thereby, ladies in terms equally insulting, and is immediately attacked, and finally kills, but only in defense of his life, we cannot hold him guilty of any crime. To hold otherwisе would be to deny a man the right to notice any ihsult or interrogate the author of any charge because he would forfеit the right to defend his life if he should be attacked. The tendency of the right to abuse is no answer to the right itself. The fact that one with a grievance arms himself, and seeks an interview with the man ivho wrongs him, is not necessarily a 2)rovoca-tion, nor does it 2ilace the injured party necessarily in the wrong. He must also, as said by Judge Hurt in Cartwright’s Case, 14 Tex. Crim. App. 502, “willingly and knowingly use language or do aсts reasonably calculated to lead to an affray or deadly conflict”; and, unless the acts are clearly calculated or intended to have such an effect, the right of self-defense is not com2>romitted, even though the l>arty armed himself and went there *7 for the purpose of a difficulty. White’s Case, 23 Tex. Crim. App. 164. There is nothing in this record that shows appellant was the aggressor, or that he used language or did anything reasonably calculated to provoke a difficulty. He invited deceased to an interview in a quiet and peaceful manner. They spoke in low tones, inaudible to bystanders fifteen feet away. Deceased first began the difficulty by loudly stаting 1 ‘that what he had said then he said now.” There was no question about what he meant, for appellant instantly replied, “If you say I am a damned coward, you are a damned liar.” Again deceased repeated the remark, and appеllant replied, and then deceased attempted to ride him down with a large and spirited stallion upon which he was mountеd, and was only prevented from doing so by appellant catching the reins near the bit. He then drew his pistol, and holding it down by his side, a struggle ensued, deceased endeavoring to jerk his reins aw'ay and ride over appellant, both parties talking exсitedly. Finally, appellant, using his pistol as a bludgeon, struck deceased, who thereupon drew his pistol and began firing, when appellant shot and killed him. In the record as presented, the deceased apjjears the aggressor throughout. Enough is shоwn in the statements of the parties to show that young Shannon had been insulted, and remarks made about him calculated to bring him intо contempt among his associates, and, when he sought an explanation, he was met with a repetition and public avowal of the charge. When he replied in similar terms to the insult, he was violently attacked by an effort to ride him down. Had he killеd deceased then, it would' have been in self-defense; but he held the pistol down, and only when the effort was continued to ridе over him did he begin to use it as a bludgeon, and finally killed, after deceased had opened fire upon him. Defendant aсted on the defensive only. But it is insisted by the State that, after the homicide, appellant remarked to Dr. Burford, who told him to go оn home, “that any njan who ran a hog over him [appellant] or insulted him in the presence of ladies, was left”; and that such а remark was evidence of malice aforethought, and clearly shows that appellant brought on the difficulty for the purpose of killing deceased. It is to be observed that of the ten bystanders, most of whom testified for the State, but a single State’s witness testified to this remark. Dr. Burford said he heard no such remark, and the j ury, to whom this issue of murder was fairly presented in the charge of the court, practically say they do not believe appellant brought on the difficulty with the purpose of killing deceаsed; and we think the evidence clearly sustains the correctness of this finding. But, concede the remark was in fact made, it simрly tends to prove that appellant had a grievance which impelled him to seek an explanation, to-wit, that dеceased had characterized him, in the presence of ladies, as a coward. But the vital question in the case—whether the interview was sought for the purpose of provoking a difficulty—must be clearly shown by the facts attending it, and not alоne by the remarks of an excited boy amidst the bloody circumstances of his first difficulty. We do not feel *8 satisfied with the ver diet, and think a new trial should have been granted. The judgment is reversed, and cause remanded.
Reversed and remanded.
Judges all present and concurring.