Opinion. a most effective obstacle to it." Commonwealth v. Tuey, 8 Cush. (Mass.) 1; Odette v. State, 90 Wis. 258, 62 N. W. 1054; Jackson v. State, 91 Wis. 253, 64 N. W. 838. The twelfth assignment of error is to the refusal of the trial court to give instructions 10 and 13 tendered by the accused. Instruction No. 10 was as follows: "The court instructs the jury that if they believe from the evidence that Philpot cursed in front of Houston Sims' store on the night in question, and that Sims immediately took up his shotgun and went out in front of his store where Philpot was and asked Philpot not to curse in front of said store; and if the jury further believe from the evidence that after Sims got on the outside of the store that he and Philpot had some words, and that Philpot made some remark to Sims to the effect that he was going to make Sims shoot his gun, and if the jury further believe from the evidence that at the time that said Philpot made said statement to Sims that said Philpot immediately reached his hand toward his hip pocket; and if the jury further believe from the evidence that Sims then believed that said Philpot was reaching for a pistol or other instrument to inflict serious bodily harm upon said Sims immediately, and that acting under said belief the said Sims fired his shotgun and killed Philpot, then the jury should find the defendant not guilty." * Instruction No. 13 is substantially the same as instruction No. 10, with this addition near the end thereof as a substitute for the words after the word "immediately:" "* and if the jury further believe from the evidence that a reasonable person under such circumstances would have concluded that said Philpot was about to inflict serious bodily injury upon Sims Opinion. immediately, and that acting under said belief the said Sims fired his said shotgun immediately and killed Philpot, then the jury should find the defendant not guilty." [21, 22] It has been repeatedly held by this court that it is error to give an instruction directing a verdict upon a partial view of the evidence. Montgomery v. Commonwealth, 98 Va. 852, 37 S. E. 1, and cases cited. For full citation of cases, see Burks' Pl. & Pr. (2d ed.) p. 496, note 15. Both of these instructions are amenable to that objection. Each omits all reference to the origin of the controversy; to the fact that Philpot disclaimed the application. of the words used by him to the prisoner; to the fact that the prisoner compelled Philpot to take his hands out of his pockets, or to the assault made upon him by the accused. The whole setting of the case is changed, especially by the omission of any reference to the origin of the difficulty, and if either of these instructions had been given, and the jury, in pursuance thereof, had found the defendant not guilty, the result would have been that he would have been tried upon one state of facts and acquitted upon another. The trial court, therefore, committed no error in refusing to give either of said instructions. [23-27] After said refusal, however, counsel for the prisoner requested the court to modify the instruction to conform to the court's view, and to give an instruction of its own motion on the subject of self-defense. This the trial court refused to do. A similar request was made in the civil case of Ches. & O. R. Co. v. Stock, 104 Va. 97, 51 S. E. 161, and it was there held that "If an instruction is right and there is evidence to support it, it should be given. If it be equivocal, it should be amended. If it be wrong in form or substance, it should be rejected, and there is no obligation on the court to correct it and then give it. A party cannot, Opinion. by asking an erroneous instruction, devolve upon the court the duty of charging the jury on the law of the case.' In the main we concur in this statement of the law, but with this qualification, that if the point upon which the instruction asked is a vital one, the jury should not be left wholly in the dark as to what the law on the subject is. Burks' Pl. & Pr. (2d ed.), p. 493. The trial court, however, did not think that the question of self-defense was involved in the case and therefore refused either to give the instruction tendered, or to accept the other invitations extended by counsel for the prisoner. Homicide in self-defense may be either justifiable or excusable. If it is either, it entitles the prisoner to an acquittal. But if the difficulty is brought about by the accused and he finds that it is necessary to kill his assailant in order to save his own life, such killing is not in the eye of the law excusable. A man cannot go a-gunning for an adversary and kill him on the first appearance of resistance, and rely upon the necessity of the killing as an excuse therefor. If we accept the prisoner's own statement of what occurred at the time of the shooting, it is so plain that he brought about the affray resulting in the death of the deceased that reasonably fair-minded men could not entertain different opinions on the subject, and if the whole evidence be considered, it is very plain that he brought on the trouble. Viewing the evidence in the most favorable light to the prisoner, he was in a place of perfect safety when he picked up his gun and walked out in front of the store and practically ordered Philpot away. His language was, "Peter, don't use that kind of language in front of my place." The deceased disclaimed using the language about the accused, and according to the testimony of the latter, threw his hand to his hip pocket, and when he did this the accused fired and Opinion. killed him. There had been nothing prior to that time to indicate that the deceased was seeking trouble with the accused. His language was not addressed to the accused, but addressed especially to the wife of the deceased. And even if it had been addressed to the accused, it is held in Reynolds v. Com. 133 Va. 760, 112 S. E. 707, that sharp words do not constitute adequate provocation to reduce a killing by the use of a deadly weapon from murder to manslaughter. In Jacobs' Case, 132 Va. 861, 111 S. E. 90, it is said: "It must be remembered, however, that provocation cannot be relied upon to reduce murder in the second degree to manslaughter, unless the provocation has so aroused the anger of the assailant as to temporarily affect his reason and self-control." In Vaiden's Case, 12 Gratt. (53 Va.) 717, 729-30, it was said: "And with regard to the necessity that will justify the slaying of another in self-defense, it would seem that the party should not have wrongfully occasioned the necessity, for a man shall not in any case justify the killing of another by a pretense of necessity, unless he were without fault in bringing that necessity upon himself." The facts of the Vaiden Case were very much stronger in favor of the prisoner than in the case at bar. The holding in the Vaiden Case was fully approved by this court in Jackson's Case, 98 Va. 845, 36 S. E. 487. See also the latter case with note distinguishing justifiable homicide and excusable homicide, 6 Va. Law Reg. 176. [28] In 1 Michie on Homicide, section 112, it is said: "The general rule is that one cannot provoke an attack, bring on a combat, and then slay his assailant, and claim exemption from the consequences on the ground of self-defense. No one can avail himself of the plea of self-defense, in a case of homicide, or assault with Opinion. intent to murder, when the defendant was himself the aggressor, and willfully brought on himself, without legal excuse, the necessity for the killing, or the assault made. He who provokes a personal encounter, in any case, thereby disables himself from relying on the plea of self-defense in justification of a blow which he struck during the encounter. Where the defendant provoked the difficulty, it makes no difference as to what threats were made by the deceased, or what his character may have been for violence, or what may have been the danger to the defendant at the time he fired the shots. The law will not excuse him for the homicide. That decedent did not exercise proper self-control did not make him the aggressor, as affecting accused's plea of self-defense. While in some instances, courts, in setting forth the rule as to the effect of aggression or provocation by the defendant upon his right to kill in selfdefense, have made use of the expression ‘reasonably free from fault,' yet in other decisions this form of expression has been condemned, and it has been held that, in order that his act may be justifiable as in selfdefense, the defendant must have been free from all fault or wrong-doing on his part which had the effect to provoke or bring on the difficulty." A large number of cases from different States are cited by the author to support the text. It seems plain from the testimony in the case, as said by the trial judge, that no case of self-defense was involved. What the prisoner was entitled to was an instruction on the subject of the reduction of the offense from murder to manslaughter, and this instruction had already been given by the court. [29, 30] The thirteenth assignment of error is to the action of the trial court in refusing to allow counsel for the defendant to argue the doctrine of self-defense be |