(after stating the facts.)-' The testimony is abundant.to establish the fact that appellant was the aggressor in both encounters with deceased, and fully sustains the verdict of the. jury. It is unnecessary to rehearse all the facts.
The court, on motion of counsel for the State, fully and correctly instructed the jury as to the grades of murder and manslaughter, and we find no error therein.
The defendant asked the following instruction, which the court, over his objection, modified by inserting the words shown in italics below, viz:
“No. 5. You are instructed .that manslaughter is the unlawful killing of a human being without malice, -either expressed or implied; that manslaughter must be voluntary- upon the sudden heat of passion irresistible; and if you believe from the evidence that deceased assaulted the defendant with a knife in such a manner as would be apparently sufficient to arouse in defendant such passion, and that it did arouse such passion in him, and that while in this condition, and that the defendant was not the aggressor at the time, and before a sufficient time had elapsed for his passion to cool, he armed himself, pursued and unlawfully and without justification killed the deceased, he would not be guilty of either degree of murder, but would be guilty of voluntary manslaughter only."
The modifying words are somewhat awkwardly inserted, but we think the idea is conveyed with reasonable certainty that, if appellant was the aggressor in the first encounter in which the alleged provocation for the killing was given by deceased, then such provocation would not reduce the grade of the offense from murder to manslaughter.
A person cannot take advantage of a provocation invited and brought about by- his own unlawful aggression, in order to reduce the grade of his crime from murder to manslaughter, when he has not in good faith attempted to retire from the *249encounter: If appellant was the aggressor in the first difficulty, and was assaulted and cut by deceased while so engaged, and killed deceased upon a sudden heat of passion aroused by the assault made by deceased, the grade of his offense was not thereby reduced to manslaughter. This is because malice, which is an essential element of murder, is implied from the fact that he sought the difficulty in which provocation for passion was given, and became the aggressor therein.
But this rule is subject to a qualification stated by Mr. Bishop as follows:
“Where an assault, which is neither intended nor calculated to kill, is returned by violence beyond what is proportionate to the aggression, the character of the combat is changed; and if, without time for his passion to cool, the assailant kills the other, he commits only manslaughter.” 2 Bishop, Crim. Law, § 702. This qualification is sustained by the great weight of authority. State v. Partlow, 90 Mo. 608; Cotton v. State, 31 Miss. 504; State v. Hill, 4 Dev. & Bat. 491; Daniel v. State, 10 Lea, 261; Horrigan & Thompson’s Cases Self-Def. p. 227.
There is a conflict in the testimony as to whether the appellant entered the first encounter with any malice, or with any intention to kill or to do great bodily harm to deceased. There is also conflict in the testimony as to whether deceased did not, in repelling the aggression of appellant, use violence greatly disproportionate to the aggression. Yet the court, by this modification of the instruction asked, cut off all avenue for the jury to find appellant guilty of manslaughter only, even though they may have found that he brought on the first difficulty without malice, and without intent to kill or do great bodily harm, and even though deceased may have committed an assault upon him disproportionate to his aggression. We think the court erred in making the modification without the further qualification herein indicated.
Counsel for appellant urge that the case should be reversed on account of improper remarks of associate counsel for the State in his argument to the jury. The statements of the attorney in reference to the number of murders which, he alleged, had been recently committed in Ashley County were improper, but *250the court stopped him of its own motion, and immediately admonished the attorney to desist from such argument, and instructed the jury to disregard the statement. After the close of the argument, the learned judge, referring again to the remarks of counsel, said to the jury: “You should not pay any attention to that part of the attorney’s argument; you are not trying this man for what others may have done. The question you are to determine is his guilt or innocence of the crime charged against him, and you should not regard said argument, and I so instruct you.” In view of this timely and appropriate admonition from the court and the testimony in the case, we feel. sure that no prejudice resulted to appellant from the improper remarks of counsel, and we will not disturb the verdict on that ground.
The verdict of the jury finding the defendant guilty of murder includes a finding of his guilt of manslaughter, and his conviction of that grade of offense was upon proper instructions and upon testimony abundantly sufficient. Following the rule established by this court in many decisions (Simpson v. State, 56 Ark. 19; Vance v. State, 70 Ark. 272; Routt v. State, 61 Ark. 594; Darden v. State, 73 Ark. 315), we will not reverse the case for a new trial upon the grade of offense of which appellant was properly convicted.
Unless counsel for the State shall, within one week from this date, show cause to the contrary, the judgment will be modified, so as to sustain the conviction for manslaughter only, with the maximum punishment for that offense, seven years’ confinement in the penitentiary; and to that extent the judgment will be affirmed.