Defendant appeals from a sentence of 23 years at hard labor in the state penitentiary upon a conviction of murder in the second degree. This is a second appeal, a •former conviction having been reversed. 80 Neb. 688.
“1. If you find that the revolver was accidentally discharged at the time the last shot was fired, neither the deceased nor the defendant having complete control of the revolver, but both struggling for the possession of it, or if you have a reasonable doubt whether it was not so discharged, you cannot find the defendant guilty of murder in the first or second degree.
“2. Before you can find the defendant guilty of murder in the first degree or murder in the second degree, you must find that he intended to cause the death of the deceased and that lie purposely discharged the revolver at the time the last shot was fired. If the discharge of the revolver at that time was accidental or you have a reasonable doubt whether it was not accidental, you should acquit the defendant of murder in the first and second degree.”
Counsel assert that there was sufficient evidence tending to support their theory of an accidental discharge of the revolver to entitle them to .these instructions. The court had with commendable clearness instructed the jurors as to the various degrees of homicide, and that the burden was on the state to prove the elements essential to constitute murder in the first or second degree or manslaughter,
The court, in its solicitude for defendant, gave instructions concerning self-defense, and properly refused to mingle therewith anything relating to an accidental discharge of the firearm. Defendant did not accidentally draw the revolver from his pocket or by misadventure point it at and shoot Cox. There iq no claim that the first and second shots were hot the result of intent, action and control on the part of Kennison. If the circumstances warranted him in shooting in self-defense, he veas justified in doing what was done up to that time, and still more would he be justified in acting when his adversary had grappled with him. On the other hand, if not warranted in firing the first and second shots, he cannot be excused for the third one, nor can it be said that he purposely fired the former shots and did not intentionally cause the last one. Defendant’s purpose in this last act of the tragedy will refer back to the criminal intent, if any, that accompanied his actions in presenting his revolver and firing the first shot at Mr. Cox. Holmes v. State, 88 Ala. 26, 16 Am. St. Rep. 17; Epps v. State, 19 Ga. 102; Wharton, Homicide (3d ed.) sec. 356. Moreover, the testimony tends to prove that defendant expressed the keenest satisfaction when informed that Cox was dead. He denied making those statements, but we are satisfied that he made them, and such conduct destroys his present assertion that the killing was accidental. State v. Botha, 27 Utah, 289, 75 Pac. 731.
This verdict of murder in the second degree is the second one of that character that has been found against defendant. .'The evidence amply sustains the finding of the jury. The record will not justify a reversal, and the judgment is therefore
Affirmed.