Tbe material exceptions- in the case are based upon instructions given by the trial judge to the jury.

Exception No. 13 is to the following instruction: “Also, in self-defense, more force must not be used than necessary under the circumstances, and if excessive force is used the prisoner will be guilty of manslaughter.” This is an excerpt from an instruction, which is ds follows: “One is permitted, gentlemen of the'jury, to fight in self-defense; he might whenever it is necessary for him to do so in order to avoid death or great bodily harm; he may also do so when it is not actually necessary if he believes it to be necessary and he has a reasonable ground for the belief; but whether his ground be reasonable is a matter for the jury and not for the prisoner.

I further instruct you the right of self-defense rests upon the necessity, real or apparent, and cannot be exercised if there be a reasonable opportunity to retreat or avoid the difficulty, but if the assault in which the killing be brought about by violence and the circumstances are such that a retreat would be dangerous, he is not required even to retreat. (Also, in self-defense, more force must not be used than necessary under the circumstances, and if excessive force is used the prisoner will be guilty of manslaughter.)”

This instruction, considered in its entirety and in the setting in which it occurs, contains no reversible error and is supported by many decisions of this Court. S. v. Goode, 130 N. C., 651; S. v. Cox, 153 N. C., 638; S. v. Robinson, 188 N. C., 784.

The fourteenth exception is to the following charge of the court:

“I further instruct you that a person cannot invoke the doctrine of self-defense if he enters a fight willingly, unless and until he abandons the combat and his adversary has notice that he has abandoned the combat.”

The defendant complains that this instruction does not take into consideration the fact that in all cases of self-defense a defendant must fight willingly, but no legal guilt is attached unless at the same time he is fighting wrongfully; or, in other words, if he fought willingly but rightfully, in his own self-defense, using no excessive force, that he would not be guilty of -a crime. In support of this contention the defendant relies upon the cases of S. v. Baldwin, 155 N. C., 494, and S. v. Pollard, 168 N. C., 116. Both of these cases were distinguished in S. v. Wentz, 176 N. C., 745, in which exception was taken to the following instruction: “Or, if you find from the evidence that there was a difficulty between them, and that the prisoner entered into the fight willingly.” Walker, J., delivering the opinion of the Court, said: “Before giving the instruction,. to which this exception is taken, the court very *124 fully and clearly charged the jury as to murder, manslaughter, and self-defense, and especially with strict reference to the different aspects of evidence in the case, and its application to the several views presented, and this takes it out of the principle as laid down in S. v. Baldwin, 155 N. C., 494, and S. v. Pollard, 168 N. C., 116.”

Construing the entire charge, we think it sufficiently appears that the expression “if he enters the fight willingly” was used in the sense of entering into the difficulty voluntarily, aggressively, and without legal excuse, and must have been so understood by the jury. S. v. Harrell, 107 N. C., 944; S. v. Crisp, 170 N. C., 785; S. v. Baldwin, 184 N. C., 789.

The seventeenth exception is based upon the following instruction:

“Involuntary manslaughter, gentlemen, is where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part, not amounting to a felony, or from a lawful act negligently done.” This instruction is almost in the exact language of Wharton’s Criminal Law, 11 ed., Vol. I, sec. 426. The'first part of the instruction was quoted with approval by Stacy, C. J., in S. v. Whaley, 191 N. C., p. 391; but the addition of the words “or from a lawful act negligently done” is not in strict accordance with the rule as recognized and applied in this State. In S. v. Tankersly, 172 N. C., 955, Hoke, J., said: “But all of the authorities are agreed that in order to hold one a criminal, there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue; quoting with approval the definition given in 1 McLean’s Criminal Law, sec. 350, as follows: “A negligence which will render unintentional homicide criminal is such carelessness or recklessness as is incompatible with the proper regard for human life.” In S. v. Whaley, supra, it is further held: “But the culpable negligence of the defendant, and not an independent, intervening, sole proximate cause, must have produced the death.”

The jury returned a verdict of “guilty of involuntary manslaughter.” Under the evidence contained in the record, in order to convict, the jury must have found that the defendant was engaged in an unlawful act at the time of the killing. The evidence for the State tended to show that the defendant took the gun from the deceased and shot him. The evidence of the defendant was: “I know he hit me across the shoulder and struck the garage; he must have held the gun by the muzzle, for the stock to hit the face of the garage; this caused the gun to fire. I heard it hit, and immediately the explosion which came as almost one.” The theory of the defense was that the defendant did not have his hand upon the gun at the time it fired, but that when the deceased undertook to strike him with the stock of the gun the stock struck the garage, causing *125 tbe gun. to fire. Hence, tbe deceased came to bis death by bis own act and not by any act, negligent or otherwise, of tbe defendant.

It is apparent, therefore, that tbe jury accepted tbe State’s theory and version of tbe killing. For this reason tbe error in tbe instruction, we think, is not of such weight as to warrant a new trial.

No error.