This сause was before tbe court at a former term, and on motion of tbe attorney general tbe evidence was stricken from tbе abstract, but it was ordered tbe cause should be resubmitted. 5
It aрpears therefrom that Paul Iiergit, a brother of tbe deceased, bad some difficulty with one Butz, or rather tbe latter so claimed, but this was satisfactorily settled. About that time tbe defendant came to where Paul Iiergit and Butz were and inquired of tbe latter whether tbe former was tbe fellow who wanted to whip him. Butz responded “yes, but it was all settled.” Tbе defendent then said, “whip him any way — the son of a bitch that wants to whip Jоhnnie Butz must whip this son of a bitch.” Paul Iiergit made efforts to get away, but tbe dеfendant prevented this by walking in front of him. lie put bis band in bis pocket and рulled out something and testified it was a key, but there was some evidenсe tending to show it was a knife.
Tbe deceased came to where tbe parties were, and inquired of bis brother what they bad been dоing to him, and be was told. Tbe defendant inquired, “what does tbe son of a bitсh want,” whereupon the deceased “pulled off bis coat аnd went for” tbe defendant. Whether tbe deceased struck tbe defendant should possibly be regarded as uncertain. Tbe only person whо so testifies being, we believe, tbe defendant. Tbe result was tbe latter ran some distance and tbe deceased after him. Tbe lattеr overtook tbe former, and they were next found on tbe ground, scuffling, tbe deceased being uppermost. While in this position, tbe defendant stabbed or cut tbe deceased four times, from tbe effects of which be died in a short time. Tbe defendant, at some time during tbe meleе, received a slight cut or bruise on his bead or face, which was probably inflicted by tbe deceased.
It is urged the evidence is not sufficient to sustain the verdict, becausе it appears therefrom the defendant acted in self defense, and was justified in so doing. Or, if this is not true, that, at most, he is guilty of manslaughter only.
The defendant and the deceased had no previous acquаintance. The affray was in the evening or early night time. The facts in the case bear, at least, some resemblance to those in The State v. Thompson,
There was no evidence warranting the conсlusion the deceased was armed. He, however, pursued the dеfendant when the latter was rapidly retreating, and the fair inference is that, when he overtook him, he, by some means, threw the defendаnt down, and was attempting to beat and injure him.
Under these circumstances the knife was used. The occasion for its use was sudden, when the blood was heated, and during an actual conflict.
The pursuit had extended for some thirty or forty yards, and the defendant did not know his assailant, оr whether he was armed or not. We do not believe the defendаnt is guilty of murder in the second degree, but, at most, of manslaughter only. A new trial should have been' granted. There is no other error in the record.
Reversed.