STONE, C. J.
— It is probably true, that one trained in the law would understand the charge, numbered one, given by the court, as meaning the same thing as if the word “ when ” had not been erased. We think, however, that the average juror would not so understand it. The most natural import of the language makes the court affirm, as .fact, that “ the defendant himself was the aggressor, or was not reasonably free from fault in bringing on the difficulty.” S.o interpreted, it was an invasion of the province of the jury, who are the sole determiners of controverted questions of fact. — Bain v. State, 70 Ala. 4; 3 Brick. Dig. 114.
2. We do not understand charge 2 as counsel interpret it. We do not think it antagonizes the principle, that no man is bound to retreat from his own domicile to avoid a difficulty.-Cary v. State, 76 Ala. 78.
3. As the defendant can not, if the defense be made, be again tried for a higher offense than manslaughter in the first degree (Nutt v. State, 63 Ala. 180), the constituents of murder will be immaterial on another trial. It may admit of question, however, if charge 5 can be vindicated, to the full extent it goes. It is certainly true, that mere words, no matter how insulting, or abusive, can not, of themselves, reduce a killing to manslaughter. But murder,, under our statute, is divided into two degrees. If one, without provocation, grossly abuse or insult another, and that other promptly resent the insult, even to the taking of life, we [13]*13will not say the jury may not consider such aggressive insult, in determining whether there was a “ willful, deliberate, malicious and premeditated killing,” so as to constitute murder in the first degree. — Mitchell v. State, 60 Ala. 26. If the defendant provoked the difficulty, or gave the first insult, an insulting reply should not be considered as mitigating the offense; for he would, thereby, have made himself the aggressor. Neither should such insulting language mitigate the offense, if there be sufficient evidence of the formed design, to show that the homicide was willful, deliberate, malicious, and premeditated. All we intend to affirm is, that “ insult by mere words ” may, when the defendant acts upon them, and has not provoked them, be weighed by the jury, with the other evidence, in determining whether the murder was in the first or second degree.
Reversed and remanded.
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