I dissent. Conceding that the closing portion of the last instruction to the jury be erroneous, yet I think it is error without injury; because there was nothing in the evidence, as it appears in the record, which tended to prove that the defendant sought a combat with the deceased for the purpose of taking an advantage of him, or that the homicide was committed in a combat between the defendant and the deceased; that portion of the instruction was therefore irrelevant to the evidence in the case. Besides, the instruction itself was qualified by the other parts of the charge of the court, in such a manner that the jury could not have been misled by the objectionable part of the instruction.
Myrick, J., concurred in the dissenting opinion of Mr. Justice McKee.