We do not concur in tbe view of this case taken by his Honor. We will not advert to his opinion as to the presumption of malice, from the use of a weapon likely to kill, or lay any stress upon the distinction that might be taken between the use of a gun or pistol, and the use of stick or a stone. The one, generally used as a means of offence without any positive deadly purpose. The other, always used with an intent to hill.
We might put our opinion on this ground: According to the view his Honor takes of it, “there is no evidence of a fight.” This depends upon what is meant by “ a fight.” Is it necessary that both parties should give and take blows, or is it sufficient that both parties should voluntarily put their bodies in a position to give and take blows, and with that intent? To illustrate: Suppose Rippy had not been killed. Upon an indictment for an affray, would he not have been convicted? Two men go out to fight. One is knocked down on the “ first pass,” and that is the end of it. Are they not both guilty of an affray ? That is, “ a fight by mutual consent.”
But passing all this by, we put our opinion on the ground, that his Honor told the jury, “there was no evidence that the deceased struck, or attempted to strike, the prisoner.”. Upon a consideration of the case, our conclusion is, that there was evidence tending to show, that Rippy attempted to strike the prisoner, and had committed an assault, which is defined in the books to mean “ an offer or attempt to strike another.” We have this case: The parties are “tight” — talk about manhood — get into a quarrel, and Rippy starts off saying, “ Don’t follow me.” What he meant by these words, was a question for the jury. Was he begging off, or backing out from a fight ? Or did he mean, “ if you follow me there will be a fight” ? This was a question for the j ury. The position of the body, the rail, and the blows being on the right side of the head, the prisoner having lost his right arm, was evidence tending to show that Rippy, as soon as he saw that the prisoner was following him, jerked a rail off of the fence, and advanced to *156meet him in combat. So then there was a sudden quarrel, a fighting by consent — no evidence of an unfair advantage — the parties take up such weapons as, in their haste, they are able to lay their hands on, and death ensues. Such, as it seems to us, was a view that the prisoner had a right to have presented to the jury. His Honor, after putting the case to the jury, as one where the prisoner pursued the deceased with a present purpose to kill him, and the deceased had a right to defend himself, ought to have presented the other view for their consideration, and instructed them, that if the killing was the result of a sudden quarrel and an affray growing out of it, and the challenge of the deceased, as understood by the prisoner, the law, out of indulgence to the passions of men, does not look upon it as a case of Gold, deliberate murder, as when one lies in wait and kills of malice, but ascribes it to the fu/ror brevis, sudden passion, excited by the quarrel, and the menace, “ don’t you follow me.” He ought to have added, although mere words do not amount to legal provocation, yet words, followed up by the hostile announcement of a willingness to fight, and an affray instantly resulting therefrom without “ cooling time ” — no unfair advantage being taken — -no blow from behind — but the parties facing each other and rushing to the conflict in deadly strife, relieved the case from the charge of deliberate murder, and put it under the mitigated offence of manslaughter, i. e. when one kills another in the heat of passion excited by legal provocation.
There is error.
Venire de novo.