Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
James Dysart and J. M. McNamara, for Appellant.
Geo. B. Thatcher, Attorney-General, E. P. Carville, District Attorney, and Chas. A. Cantwell, Deputy District Attorney, for Respondent.
By the Court, Coleman, J.:
The appellant, who will hereafter be designated the defendant, was convicted of murder in the first degree, and from a denial of the motion for a new trial and the judgment, appeals to this court.
It appears that on the 20th of August, 1913, William Billings, the deceased, went to the town of Mountain City, and after arriving inquired where the defendant could be found. Being informed by one George Anderson that the defendant was in the house where the defendant and his mother resided, the deceased, in company with said Anderson, proceeded to the residence and made search for the defendant, and, failing to find him, went to a cabin a short distance from the house, where defendant was asleep. Deceased awoke the defendant and demanded of him payment of an alleged indebtedness of $25. Defendant insisted that he did not owe the debt; whereupon deceased struck him in the face, and took the defendant by the collar and led him to the defendant's barn in search of a saddle which the deceased said he was going to take in payment of the indebtedness. The evidence tends to show that while in the barn the deceased again assaulted the defendant, and, not finding the saddle at that place, proceeded to the barn of one Rutherford in search of the saddle, where it was found and taken by the deceased and put into his buggy. It appears that at no time did the defendant resist the assaults of the deceased.
After having a meal and attending to some other matters, the deceased, in company with his wife and little daughter, left Mountain City, driving in the direction of his home. The defendant, shortly after the departure of the deceased, having in his possession a gun which he had prior to the time deceased left, procured a horse, and,
according to his theory, started to the residence of a neighbor to get and return to his home a couple of horses which had escaped from his possession. It is also contended by the defendantof which there is evidencethat the defendant made a practice of carrying a gun when traveling around the community. On arriving at the home of one Stinton, a short distance from Mountain City, the wife and daughter of the deceased got out of the buggy and went into the house, the deceased proceeding to the barn, where, in company with T. B. Stinton, he was unhitching the horses, when defendant rode up. Upon arriving at a point about twenty steps from the barn, and while in the road, the defendant dismounted, and with the shotgun under his arm walked a few steps ahead of the horse, which he was leading, and turning to the deceased said: Billings, I want that saddle, and I want it right away. Deceased pointed over his shoulder and said: There is your saddle, Jerry; there is your saddle. At this time defendant held the stock of the gun under his arm; the muzzle of it being turned toward the deceased. At this point the deceased walked at a medium gait towards where the defendant was standing. The defendant demanded that the deceased stop when the deceased was about fifteen steps distant from the defendant. The deceased, however, kept going towards the defendant. Defendant again demanded that the deceased stop, but deceased ignored his command, and continued on towards where the defendant was standing, and, when he got within a few feet of the defendant, the defendant again demanded that the deceased stop, but, instead of doing so, he made a lunge for the gun, whereupon defendant stepped back a couple of steps, and, jerking the gun slightly to the side, fired; the discharge killing the deceased.
 It is urged that the court erred in admitting in evidence, over the objection of the defendant, certain testimony of one Rutherford, who gave evidence to the effect that the deceased in 1911 sent the witness an order upon defendant for $25, and which the defendant had
not paid. It appears from the testimony of the witness Anderson, who was the only eye-witness to most of the trouble in Mountain City, that the trouble at that place grew out of this alleged indebtedness, which the deceased claimed to be due him, and which the defendant steadfastly maintained he did not owe. From a reading of the entire record in this case, we are unable to see that the testimony of Rutherford could throw any light upon what transpired on the day of the homicide. The only effect it could have had, coming, as it did, at a time when all that had transpired at Mountain City had been related, was to prove the indebtedness, and thus prejudice the jury against the defendant. We are clearly of the opinion that the court should have sustained the objection to the evidence offered.
 Error is also assigned to the giving by the court, over the objection of defendant, of the state's requested instruction No. 25, which reads as follows:
The jury are instructed: That if you believe from the evidence, beyond a reasonable doubt, that the defendant armed himself with a deadly weapon for the purpose of seeking the deceased, and that the defendant then followed the deceased from Mountain City to the Stinton ranch, and that the defendant there attacked the deceased with a deadly weapon, then I instruct you that the defendant was the aggressor. And if you likewise find that the deceased thereupon made a counter attack upon the defendant which was such as to excite the fears of a reasonable man that the deceased was about to take the life of the defendant or do him great bodily harm, still the defendant must be held to remain the aggressor, unless you shall likewise find from the evidence that the defendant in good faith had declined further combat, and had fairly notified the deceased, as a reasonable man, that he had abandoned the contest. And if you should find that the circumstances were such, arising from such counter attack, that the defendant could not so notify the deceased, the danger in which the defendant then stood was brought upon himself by his own fault, and he cannot justify the killing of the
deceased under a plea of self-defense. And I further instruct you that an attack is an opening or commencing act of hostility.
It is urged by counsel for appellant that this instruction is defective, in that it does not embody the element of the intent with which the alleged original assault was made by the defendant, claiming that, if the defendant did not intend to commit a felony in making the original attack, he was entitled to plead self-defense in killing the deceased.
The Supreme Court of Missouri, in the case of State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31, reviews some of the cases in point which had been decided prior to the rendition of that opinion, and says:
In all of these cases I have cited, and I might have cited a great cloud of witnesses' to bear testimony to this well-established legal principle, the idea is made prominent that the main feature in such cases is the intent with which the accused brought on the quarrel or difficulty; if with no felonious intent, no harboring of malice, no premeditated purpose of doing great bodily harm, or killing the person assaulted or with whom the quarrel is begun, then the accused is not a murderer, let the result of the difficulty turn out as it will.
The Supreme Court of Appeals of Virginia, in the case of Hash v. Commonwealth, 88 Va. 194, 13 S. E. 405, uses the following language:
Horrigan and Thompson, in their cases in self-defense (page 227), in a note to Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, cited in State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31, give an admirable summary of the authorities on this subject as follows: If he [the slayer] provoked the combat or produced the occasion, in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provoked the combat, or produced the occasion, without any felonious intent, intending, for instance, an ordinary battery merely, the final killing in self-defense will be manslaughter only.' Here
is a clear recognition of the doctrine that, although the slayer provoked the combat, or produced the occasion, yet, if it was done without any felonious intent, the party may avail himself of the plea of self-defense. In the case of State v. Partlow, supra, the learned judge, delivering the opinion, cites, in support of this doctrine, State v. Lane, 26 N. C. 113; Reg. v. Smith, 8 Car. & P. 160; Slaughter's Case, 11 Leigh, 681; 37 Am. Dec. 638; Murphy v. State, 37 Ala. 142; Adams v. People, 47 Ill. 376; State v. Hildreth, 31 N. C. 429, 51 Am. Dec. 364; State v. Hogue, 51 N. C. 381; State v. Martin, 24 N. C. 101; Atkins v. State, 16 Ark. 568; Cotton v. State, 31 Miss. 504; Stewart v. State, 1 Ohio St. 66; State v. Hill, 20 N. C. 629; and 2 Bish. Crim. Law, sec. 702, supra; and by way of enforcing this well-settled legal principle, the learned judge makes this remark: Indeed the assertion that one who begins a quarrel or brings on a difficulty with the felonious purpose to kill the person assaulted, and accomplishing such purpose, is guilty of murder, and cannot avail himself of the doctrine of self-defense, causes with it in its very bosom the inevitable corollary that, if the quarrel be begun without a felonious purpose, then the homicidal act will not be murder. To deny this obvious deduction is equivalent to the anomalous assertion that there can be a felony without a felonious intent; that the act done characterizes the intent, and not the intent the act. The bare statement of such a doctrine accomplishes its own ample refutation; a doctrine inconsistent with its premises and illogical in its conclusion. In the light of this well-settled doctrine, it is manifest that the trial court erred egregiously in saying to the jury that a man cannot in any case justify the killing of another on the pretense of self-defense, unless he be without fault in bringing the necessity of so doing upon himself.' Recurring now to the rule laid down by Bishop that, if the individual assaulted, being himself without fault, reasonably apprehends death or great bodily injury to himself unless he kills the assailant, the killing is justifiable, the inquiry presents itself: What fault' is it that
will deprive a man of his plea of justifiable self-defense? This question has already been answered by the authorities cited. It is the fault' of seeking and directly bringing about the occasion for the killing, limited, however, by the intention with which the occasion was brought about. Inasmuch, therefore, as the right of a party accused of a felonious homicide to avail himself of the plea of justifiable self-defense depends upon the intent with which he provoked the difficulty, and inasmuch as it is the doctrine of the law that no man is to be punished as a criminal unless his intent is wrong, and as the intent is a fact to be found by the jury, then in every case where the evidence creates any doubt as to the character of the intent the court should instruct the jury as to the distinction between perfect and imperfect defense, as applicable to the particular circumstances attending the homicidal act of the accused. (Meuly's Case, 26 Tex. App. 274, 9 S. W. 563, 8 Am. St. Rep. 477, and authorities cited.)
The Supreme Court of Tennessee, in Foutch v. State, 95 Tenn. 716, 34 S. W. 424, 45 L. R. A. 690, uses the following language:
In order to make a man guilty of murder who is the aggressor' or in fault,' or who provokes a difficulty' in which his adversary is killed, he must have provoked it with the intent to kill his adversary, or do him great bodily harm, or to afford him a pretext for wreaking his malice upon his adversary [citing cases]. In order to deny such party the right to rely on the plea of self-defense, it must appear that he was the aggressor' or in fault,' or provoked the difficulty' in such a way and with such intent as the law contemplates in the use of these terms. It is not every aggression' which produces a difficulty that is an unlawful one within the meaning of this phrase, nor is it every fault' which a man might commit that precludes him from defending himself when violently assaulted or menaced, nor is it every provocation of a difficulty' which robs him of the right of self-dense.
Where a difficulty is intentionally brought on for the purpose of killing deceased, the fact of imminent danger to the accused constitutes no defense; but when the accused embarks in a quarrel with no felonious intent, or malice, or premeditated purpose of doing bodily harm or killing, and under reasonable belief of imminent danger, he inflicts a fatal wound, it is not murder but may be manslaughter. (Wallace v. U. S. 162 U. S. 466, 16 Sup. Ct. 859, 40 L. Ed. 1039.) See, also, Wharton on Homicide, sec. 198; State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31; Adams v. People, 47 Ill. 376; People v. Hayes, 9 Cal. App. 301, 99 Pac. 388.
In a case where the defendant was alleged to have been the original aggressor, the Supreme Court of Colorado uses the following language:
If, however, the wrongful intent or act was not felonious, but merely done with the intent to commit a simple assault or a misdemeanor, and in the struggle thus brought on the defendant kills his antagonist, while it is true he would not be excused or justifiedtherefore not entitled to an acquittalyet the defense may properly be interposed as legitimate, and as bearing upon the degree of the homicide, to aid the jury in determining whether it be murder or manslaughter. (Boykin v. People, 22 Colo. 506, 45 Pac. 423.)
From the decisions cited and quoted from it appears to be the rule that, if one makes an attack upon another for the purpose of committing a felony and of wreaking his malice upon the person so attacked, and the person thus attacked makes a counter attack and is slain, the plea of self-defense is not available; but, if such attack is not made with a felonious intent, the plea of self-defense is available. We are of the opinion that the intent with which the defendant made the alleged attack upon the deceased at the Stinton ranch is material, and should have been covered by the instruction.
 Error is assigned to the ruling of the court in excluding evidence offered by defendant to show that deceased had the reputation of being of a violent, turbulent and ...