His Honor charged the jury that if they believed the evidence of the defendant be would at least be guilty of manslaughter, to which the defendant excepted. It follows, therefore, from the charge of His Honor, that any idea of self-defense was excluded, and if, taking the defendant’s testimony in its most favorable aspect, an inference of self-defense might have been reasonably drawn by the jury from the testimony of the defendant, then there was error in the charge of the court.
The defendant’s wife testified that the deceased made an improper proposal to her in the field where she was at work; that be was her step-father; that she declined, and the deceased went off and in a short while returned and renewed the proposition, and said: “If you don’t consent, tell your bus-band I am going to kill him;” that she told her husband of this conversation. The defendant then testified in bis own behalf, as follows: “My wife told me that night what the deceased had said. I went next morning and borrowed a pistol. That evening I was at work in my field when deceased came to me and wanted to exchange bis horse for mine to work to the reaper. I told him I wanted a settlement. He went off and returned late in the evening and asked where Mary, my wife, was. I told him I did not know, and you are the cause of her being gone. He started towards me, rolling up bis sleeves. I told him to stand off; be keрt advancing and I shot, and gave back four cotton rows. He kept advancing *665 and I shot four times as I retreated. He got near enough to grab at me. The last time I shot hе stopped. I was twenty-five steps from my house. When I began to shoot he was about seven cotton rows from me. At the time I shot him he was approaching me rolling up his slеeves. I saw no weapon. I saw him go to the house from the field and come back through the field to me, and I thought-he had gone to his house, and got something. He looked mad and showed fight. I knew he was a very strong, Targe, muscular man, weighing about two hundred pounds. I weigh one hundred and twenty-two pounds. The land I lived on and worked belonged to the deceased. I did not have the pistol when he came to the field the first time. The wounds were the cause of his death.” Thomas Bost testified as to the dying declarations of thе deceased, as follows: “ITartsell said he. was going to die. Said he was willing to suffer the punishment. That he would not hurt a hair on Hough’s head. Said he Thought Hough justifiable in what he did.” There wаs also evidence tending to prove that the general character of the deceased was bad for violence, and that the defendant knew of it; that he was a very large and powerful man physically, very muscular, and weighing about two hundred pounds, and that the defendant was a very small, weakly man, weighing one hundred and twenty-two pounds,' and of excellent character.
It is contended by the State that the fact that the defendant procured a pistol on the morning of the homicide is to bе taken as conclusive evidence of an intent on the part of the defendant to unlawfully use the pistol if an emergency arose, and that he was in fault in entering into the combat with a deadly weapon. This would probably be a legitimate argument, but for the fact that the testimony discloses that the deceased threatened tо kill the defendant; that he told the defendant’s wife to tell him so, and in view of the fact that there was a great disparity in the size and strength of the *666 two men, it does not follow neсessarily that the defendant’s purpose was to do more than defend himself. The defendant’s testimony, if believed by the jury to be true, establishes the following facts: That the defеndant was at his own home attending to his business; that the deceased came to the defendant’s house; that he was a very powerful, violent and dangerous man; that he had threatened to kill the defendant, and told the defendant’s wife to tell him so; that at the time of the shooting he was advancing on the defendant in a striking attitude; the defendant orders him to stop. It is a fair inference to suppose that the defendant thought the deceased was advancing upon him for the purpose of carrying into execution the threat he had made. The defendant retreats and gives back, although he is on his own premises. This powerful and dangerous man continues to advance, rolling up his sleeves; one shot does not stop him; he did not stop until the fourth and fatal shot.
It is undoubtedly true that if two engage in a fight upon a sudden quarrel, one being unarmed and the other armed, and one kills the other with a deadly weapon, it is at least manslaughter.
State v. Curry,
It is true there is no evidence that the deceased was armed with a deadly weapon, at least none was exhibited, but the evidence does show that the deceased bad sent word to the defendant that be intended to kill him and the defendant bad a right to suppose that the deceased was endeavoring to carry out bis threat and was prepared to do it. Then, again, the
*668
evidence shows there was an enormous disparity in the relative strength and power of the defendant and deceased, the one being a weakly, delicate man of very small stature; the other, in comparison, being a giant of violent nature, and evidently capable of either killing the defendant or. doing him great bodily harm without the aid of a weapon. The defendant was on his own premises, engaged in his peaceful pursuits at the time the deceased advanced on him in a manner giving unmistakable evidence of his purpose to do the defendant bodily harm. How was the defendant expected to receive him? In the oft quoted language of
Judge Pearson
in
State v. Floyd,
• We think the case should have been submitted to the jury with appropriate instructions by the court.
New Trial.