SMITH, J.,
Appellant was indicted in the court below for murder, convicted of manslaughter, sentenced to three years in the penitentiary, and appeals to this court.
There were a goodly number of eyewitnesses to the killing, only •one of whom was introduced by the state; several of the others being introduced on behalf of appellant. The witness introduced on the part of the state admittedly did not see all of the difficulty; his attention being first attracted thereto by the report of the first shot fired by appellant. The evidence of the other eyewitnesses is not in material conflict with the testimony of the state’s witness relative to that portion of the difficulty which -was seen by him, and from the whole evidence it is clear that appellant acted in necessary self-defense. The court, therefore, erred in not granting the peremptory instruction requested by appellant.
The judgment of the court below is reversed, and the cause remanded. Reversed.