1. We have searched the evidence in vain for any fact that made the homicide necessary at the time it was .committed, or that would justify it, or reduce it below the grade of murder. There was bad feeling between the parties; they were in an ill-tempered controversy about property; the deceased had used improper language while the controversy was pending, showing a determination to maintain his supposed rights by violence; but he had not gone to the extent of committing a breach of the peace, and we cannot discover from the evidence that he attempted or intended any act of hostility against the prisoner at the time the prisoner slew him. What he said was said on previous occasions. At the last fatal interview, he seems to have behaved with propriety, and neither by word or deed, to have given the prisoner cause to attack him. He had not forfeited his life; and in taking it, the prisoner assumed the grave responsibility which is about to overwhelm him.
2. It is not clear that some little evidence excluded by the court was not admissible. Perhaps it was admissible; but whether it was in or out could have made no difference in the result. None of the excluded evidence bore directly on the main transaction; it did not relate to what took place on the occasion of the homicide. The whole strength of the case is, that under the circumstances then and there existing, there was no good reason for killing the deceased — that the killing might have been let alone by the prisoner, and that he, nevertheless, committed the homicide. The evidence kept out would not have changed the real case one iota. There is no cause in the record for granting a new trial.
