Henry, C. J.
— The defendants were indicted in the Carroll circuit court for the murder of John Rea, and, on a trial, were convicted of murder in the second degree [315]*315at the April term, 1885, of said court, and from the judgment have appealed to this court.
The defendant Baugh and Rea had occupied a cabin together, but had a difficulty, which resulted in their separation, Rea leaving Baugh in possession of the cabin and of some furniture belonging to Rea. Baugh had made threats that if Rea ever came back to the cabin he “would stop him at the door.” To another witness, that if Rea ever came to his house, ‘£ he would never get away alive.” On the morning of the eighth of April, 1884, Baugh went over to see Anderson, who is his cousin, and who was sick, and asked him to go home with him. There is evidence tending to prove that Baugh expected Rea to come to his cabin that afternoon for his goods. Anderson accompanied Baugh home, and about six o’ clock that afternoon, Rea went to the cabin and was-killed near and in front of the cabin door by the defendant Anderson.
The testimony of Anderson and Baugh, if true, made a clear case of self-defence. It was to the effect that Rea came and knocked at the door of the cabin, and was-asked by Baugh who it was, and, answering, was told by Baugh that there had been strife between them and he did not wish' him to come into the cabin, but Anderson said let him come in, and thereupon Rea entered and commenced cutting Baugh with a knife, who ran out of the cabin followed by Rea, and when Anderson went to-the door, he turned back and commencd firing upon Anderson, who got a gun from a rack near the door and shot him.
The following instructions given for the state are-complained of: *
“ 3. If the jury believe from all the evidence in the case, beyond a reasonable doubt, that the defendants are guilty of murder in the first degree or second degree, as these offences have been defined in these instructions, but have a doubt as to the degree of offence of which the [316]*316•defendants are guilty, the jury will give them the benefit •of such doubt, and find them guilty of the less offence.”
“4. If the jury believe, beyond a reasonable doubt, that the defendant Anderson is guilty of either degree of murder, as defined by these instructions, but entertaining a reasonable doubt as to the guilt of defendant .Baugh, then they may convict the said Anderson and .•acquit the said Baugh.”
“8. In considering what the defendants have said •.since the fatal shooting, if you find they have said anything in relation thereto, you should consider it all together. They are entitled to the benefit of what they :said for themselves, if true, as the state is entitled to the benefit of what they said against themselves in any conversation of defendants proved by the state. What they .said against themselves the law presumes to be true because against themselves ; but what they said for themselves you are not bound to believe because said in a .conversation proved by the state. You may believe it ■or disbelieve it, as it may be shown to be true or false by all the evidence in the case.”
It is objected to the first of the above instructions, that it permitted a conviction for murder in the second degree, if the jury, believing them guilty of murder, had ,a doubt as to the degree of murder of which they were .guilty. If the evidence satisfied the jury, beyond a reasonable doubt, that defendants intentionally and maliciously killed Rea, and the only. doubt they had was, whether it was done with the deliberation necessary to constitute the homicide murder in the first degree, .but having none whatever that it was committed with the premeditation, which made the crime murder in the second degree, it was their duty, as the court instructed, to find them guilty of the latter crime. Can it be that it was the duty- of the jury, so believing from the evidence, to acquit the defendants ? Certainly not.
Nor do we see any objection to the second instruc[317]*317tion, which declared that if, beyond a reasonable doubt, the jury believed Anderson guilty of murder in either degree, but had a reasonable doubt of Baugh’s guilt, they might convict Anderson and acquit Baugh. Counsel contend that it is erroneous, in not having confined the belief of the jury to the evidence; but they were sworn to try the cause on the evidence, and could not possibly have supposed that they were permitted, by this instruction, to base their verdict upon anything but the testimony in the cause. Objection is made to the third instruction, that the jury were told that they must consider whatever defendants had said, since the shooting, in relation thereto, all together, thus permitting what one said to prejudice the other. While such a construction might be placed upon the instruction, considered by itself, yet the court, in an instruction immediately following it, told the jury distinctly that the statements made by either of the defendants were-only binding upon him who made them.
The following instructions asked by defendants-were refused:
“1. If, after considering all the evidence in the case, the jury shall entertain a reasonable doubt as to-whether defendant Anderson, in killing John Rea, acted maliciously or in self-defence, then the jury can not convict him.”
“2. The court instructs the jury that if John Rea went to the house of defendant Baugh, and brought on a difficulty with the defendant, and in following up such difficulty was shot and killed by defendant Anderson, then the defendant Anderson, in killing said Rea, is not guilty of murder in either degree.”
“ 3. The jury are instructed that Anderson had the right to go to the cabin of Laurel Baugh along with him and to stay all night with him ; and that if Anderson had lain down on the bed, and Baugh had closed the door, the deceased came to the cabin and asked ad[318]*318mittance, and the door was opened by Baugh, and the ■deceased made an assault on Baugh with á knife and cut and wounded him, and then and there Baugh attempted to defend himself with a pistol, but failed in his defence and was obliged to retreat or fly from deceased, and ran from the door of the cabin, and immediately or within a very short time thereafter, the deceased rushed again towards the door and assaulted-Anderson with a knife and a pistol, or either of them— ■then Anderson had the right to defend himself the same ■as if he were in his own house, and if, in repelling said .assault, Anderson, in the necessary defence of his per-.-sou, with a shot-gun, shot at and killed the deceased, then Anderson was justifiable in his act of shooting, .and neither of defendants is guilty, and the jury must .so find in their verdict.”
The first was properly refused, because the jury had ..been sufficiently instructed with respect to a reasonable ■doubt. The second might properly have been refused, because too vague and indefinite. It does not follow from the fact that one brings on a difficulty, and follows it up, that the other may kill him. He may bring on the difficulty and follow it up in a manner that will not justify the other in killing him.
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Henry, C. J.
— The defendants were indicted in the Carroll circuit court for the murder of John Rea, and, on a trial, were convicted of murder in the second degree [315]*315at the April term, 1885, of said court, and from the judgment have appealed to this court.
The defendant Baugh and Rea had occupied a cabin together, but had a difficulty, which resulted in their separation, Rea leaving Baugh in possession of the cabin and of some furniture belonging to Rea. Baugh had made threats that if Rea ever came back to the cabin he “would stop him at the door.” To another witness, that if Rea ever came to his house, ‘£ he would never get away alive.” On the morning of the eighth of April, 1884, Baugh went over to see Anderson, who is his cousin, and who was sick, and asked him to go home with him. There is evidence tending to prove that Baugh expected Rea to come to his cabin that afternoon for his goods. Anderson accompanied Baugh home, and about six o’ clock that afternoon, Rea went to the cabin and was-killed near and in front of the cabin door by the defendant Anderson.
The testimony of Anderson and Baugh, if true, made a clear case of self-defence. It was to the effect that Rea came and knocked at the door of the cabin, and was-asked by Baugh who it was, and, answering, was told by Baugh that there had been strife between them and he did not wish' him to come into the cabin, but Anderson said let him come in, and thereupon Rea entered and commenced cutting Baugh with a knife, who ran out of the cabin followed by Rea, and when Anderson went to-the door, he turned back and commencd firing upon Anderson, who got a gun from a rack near the door and shot him.
The following instructions given for the state are-complained of: *
“ 3. If the jury believe from all the evidence in the case, beyond a reasonable doubt, that the defendants are guilty of murder in the first degree or second degree, as these offences have been defined in these instructions, but have a doubt as to the degree of offence of which the [316]*316•defendants are guilty, the jury will give them the benefit •of such doubt, and find them guilty of the less offence.”
“4. If the jury believe, beyond a reasonable doubt, that the defendant Anderson is guilty of either degree of murder, as defined by these instructions, but entertaining a reasonable doubt as to the guilt of defendant .Baugh, then they may convict the said Anderson and .•acquit the said Baugh.”
“8. In considering what the defendants have said •.since the fatal shooting, if you find they have said anything in relation thereto, you should consider it all together. They are entitled to the benefit of what they :said for themselves, if true, as the state is entitled to the benefit of what they said against themselves in any conversation of defendants proved by the state. What they .said against themselves the law presumes to be true because against themselves ; but what they said for themselves you are not bound to believe because said in a .conversation proved by the state. You may believe it ■or disbelieve it, as it may be shown to be true or false by all the evidence in the case.”
It is objected to the first of the above instructions, that it permitted a conviction for murder in the second degree, if the jury, believing them guilty of murder, had ,a doubt as to the degree of murder of which they were .guilty. If the evidence satisfied the jury, beyond a reasonable doubt, that defendants intentionally and maliciously killed Rea, and the only. doubt they had was, whether it was done with the deliberation necessary to constitute the homicide murder in the first degree, .but having none whatever that it was committed with the premeditation, which made the crime murder in the second degree, it was their duty, as the court instructed, to find them guilty of the latter crime. Can it be that it was the duty- of the jury, so believing from the evidence, to acquit the defendants ? Certainly not.
Nor do we see any objection to the second instruc[317]*317tion, which declared that if, beyond a reasonable doubt, the jury believed Anderson guilty of murder in either degree, but had a reasonable doubt of Baugh’s guilt, they might convict Anderson and acquit Baugh. Counsel contend that it is erroneous, in not having confined the belief of the jury to the evidence; but they were sworn to try the cause on the evidence, and could not possibly have supposed that they were permitted, by this instruction, to base their verdict upon anything but the testimony in the cause. Objection is made to the third instruction, that the jury were told that they must consider whatever defendants had said, since the shooting, in relation thereto, all together, thus permitting what one said to prejudice the other. While such a construction might be placed upon the instruction, considered by itself, yet the court, in an instruction immediately following it, told the jury distinctly that the statements made by either of the defendants were-only binding upon him who made them.
The following instructions asked by defendants-were refused:
“1. If, after considering all the evidence in the case, the jury shall entertain a reasonable doubt as to-whether defendant Anderson, in killing John Rea, acted maliciously or in self-defence, then the jury can not convict him.”
“2. The court instructs the jury that if John Rea went to the house of defendant Baugh, and brought on a difficulty with the defendant, and in following up such difficulty was shot and killed by defendant Anderson, then the defendant Anderson, in killing said Rea, is not guilty of murder in either degree.”
“ 3. The jury are instructed that Anderson had the right to go to the cabin of Laurel Baugh along with him and to stay all night with him ; and that if Anderson had lain down on the bed, and Baugh had closed the door, the deceased came to the cabin and asked ad[318]*318mittance, and the door was opened by Baugh, and the ■deceased made an assault on Baugh with á knife and cut and wounded him, and then and there Baugh attempted to defend himself with a pistol, but failed in his defence and was obliged to retreat or fly from deceased, and ran from the door of the cabin, and immediately or within a very short time thereafter, the deceased rushed again towards the door and assaulted-Anderson with a knife and a pistol, or either of them— ■then Anderson had the right to defend himself the same ■as if he were in his own house, and if, in repelling said .assault, Anderson, in the necessary defence of his per-.-sou, with a shot-gun, shot at and killed the deceased, then Anderson was justifiable in his act of shooting, .and neither of defendants is guilty, and the jury must .so find in their verdict.”
The first was properly refused, because the jury had ..been sufficiently instructed with respect to a reasonable ■doubt. The second might properly have been refused, because too vague and indefinite. It does not follow from the fact that one brings on a difficulty, and follows it up, that the other may kill him. He may bring on the difficulty and follow it up in a manner that will not justify the other in killing him.
The court erred in refusing to give the third instruction.- There was ample evidence upon which, to base it, .and it makes no difference that the only evidence tending to prove that Anderson and Baugh acted in self-defence was the testimony of themselves. However the jury may treat the testimony of one on trial for a crime, the court, in its instructions, must treat it precisely as if it was the testimony of a disinterested person. The-original transcript in this cause contains instructions given for defendants on the theory of self-defence, as favorable to defendants as they had a right to ask, but the transcript filed here, as a return to a writ of certiorari, does not show that any instructions were given for [319]*319defendants, and in their application for a certiorari, counsel for appellants state, and verify it by oath, that “the original transcript purports to set out certain instructions as having been given by the court in behalf of defendants, whereas, in truth and in fact, the bill of exceptions calls for no such instructions, and does not pretend, or state, that any instructions were given on behalf of defendants.” What is done in the progress of a trial can only be known and preserved by a bill of exceptions. If the bid of exceptions neither stated that there were, nor called for, instructions given for defendants, the clerk had no authority to incorporate any as given for defendants. We may surmise that the circuit judge overlooked this defect in the bill of exceptions, and that the instructions for the defendants copied were actually given, and this would account for the refusal of the third of the above instructions; but the original transcript has been superseded by the one returned with the writ of certiorari, and we cannot look to it in the determination of this cause. Neither can we presume, as contended by counsel for the state, that the court gave all proper instructions. The transcript shows that, at the close of the evidence, the court gave instructions for the state, which are copied in full. That, thereupon, defendants asked the three hereinbefore noticed, which were refused, and, thereupon, the jury, retired to consider of their verdict, etc. Those asked by defendants are marked in the transcript as A, B, C, D. There is nothing in this transcript which allows a presumption that any instructions asked by defendants were given.
There was no error in not giving to the jury an instruction in relation to manslaughter. There was no evidence upon which such an instruction could be based. If the testimony of the accused is true, they acted in self-defence, and should have been acquitted. It was a case of self-defence, or murder in one or the other degrees; but, for the errors above indicated, the judg[320]*320meat is reversed and the cause remanded.
All concur, except Norton and Ray, JJ., who dissent.