In its charge the court instructed the jury as to Pete Miller as follows:
“There is another principle applicable, as I understand the evidence in this case, and that is this: If the defendant, Pete Miller, provoked the fight or the killing by using any language or conduct toward the deceased, 0. D. Grimsley, or the son of the deceased, ~W. G. Grimsley, which was calculated and intended to bring about the fight, then, gentlemen of the jury, the plea of self-defense would not be available to him, unless he shows that he had abandoned the fight, and that the deceased had notice of such abandonment before the mortal wound was given.”
As to A. B. Miller he charged as follows:
“This plea of self-defense would not be available to the defendant, A. B. Miller, if he provoked the difficulty by language or conduct which was calculated or intended to bring about the difficulty, unless he had quitted the fight in good faith and given his adversary notice of such action on his part.”
*187If the homicides occurred in the manner and under the circumstances disclosed by the testimony for the State there was no element of self-defense in the killings. The defendants are guilty, at least, of murder in the second degree. This, however, the defendants deny. They insist that they killed their assailants under the circumstances outlined by them. -It is upon this thepry and upon this state of facts that they press their plea of self-defense.
There is nothing in their testimony to indicate that they used any language calculated or intended to bring on the fight or that they otherwise provoked the difficulty. They were on their own premises. They were under no obligation to retreat. S. v. Anderson, 222 N. C., 148, and cases cited. If they were assaulted in the manner outlined by them they had the right to stand their ground and return blow for blow or shot for .shot in their own necessary self-defense. Being on their own premises at their own home when murderously assaulted they were under no duty to “quit the combat” or give any notice that they had abandoned the fight thus thrust upon them. They are entitled to have the law of self-defense, as applied to these facts, explained to the jury.
An examination of the charge as a whole discloses that the court below conceived that the right of self-defense, if any, did not grow out of the •circumstances immediately arising at the barn. It assumed instead that this fight was a continuation of the difficulty which arose some time theretofore at the drain ditch. In stating the contentions it enlarged upon this theory, both from the standpoint of the State and of the defendants, charging the jury in part as follows :
“The State says and insists further that the plea of self-defense is not available to either of the defendants in this case, because in this case the defendants, one or both of them, provoked this fight, brought on the difficulty down there where the drain was dug across the road, that that started the fight, that W. G. Grimsley was down there at the time filling possibly a little drain across the road . . . and that A. B. Miller provoked this difficulty, caused it to start in the first place, that they never quitted the fight or if they did quit it, they never notified either 0. D. Grimsley or W. G. Grimsley that they had quitted the fight, but instead ■of that they went to their home, Pete Miller getting the shotgun and A. B. Miller getting the rifle and went down to the barn with intent, so the State says and insists, as this evidence discloses, of killing W. G. Grimsley when he came back after his mule and plow.”
This tends to emphasize rather than to mitigate the error. The rule of law as stated by the judge relates to an affray presently existing and not to prior difficulties. We do not understand that under these conditions the defendants would be deprived forever thereafter of the right to defend themselves unless or until they gave some further notice to the *188Grimsleys that they did not intend to pursue the matter further. The-law is not so harsh or so unreasonable. While the former assault may have been the motivating cause of the gun battle it did not require the application of this limitation upon the right of self-defense.
That occurrence tends rather to show malice on the part either of the Grimsleys or of the defendants. If the Grimsleys assaulted the defendants at the barn, as contended by them, their conduct was prompted, no. doubt, in part at least, by animosity engendered at the drain ditch. If the defendants waylaid and shot the Grimsleys, as contended by the State, the same is true as to them. These phases of the testimony should be submitted to the jury under proper instructions.
It follows that the quoted charge, as given, had no application to the facts in this case. Under the theory of the State the defendants deliberately concealed themselves, waylaid and killed the Grimsleys. Hence,, it is not pertinent to the State’s evidence. If the jury should find that the homicides occurred as testified to by the defendants the charge is-equally inapposite. It was misleading and had the effect of depriving-defendants of their right of self-defense.
We must not be misunderstood. Even if the Grimsleys assaulted the defendants at the barn with pistols in the manner and under the circumstances testified to by them, the guilt or innocence of the defendants would depend upon the motive which prompted them to fight back. If' they engaged in the gun battle as willing participants by reason of malice- or ill will instilled by the fight at the drain ditch they would be guilty of murder in the second degree. If they did so, prompted by passion aroused by an unprovoked assault and not by the motive of self-defense,, they would be guilty of manslaughter at least. This, as well as the-question of excessive force, is, in any event, for the jury.
The indicated error in the charge entitles the defendants to a
New trial.