1. The facts of this case show a deliberate intention on the part of the prisoner to fight the deceased on account of a previous threat, made some twenty minutes before by the deceased against the life of the prisoner. His remark that if *200deceased was going to whip him he was ready for him now, coupled with the firing of the fatal shot immediately after-wards, on the prompt acceptance by deceased of the challenge thus thrown out, fully justified the jury in their finding, and the prisoner is fortunate in having escaped the severer penalty prescribed by the Revised Code, section 4445.
2. The obvious meaning of section 4259 of the Code, which provides that, “provocation by words, threats, menauces or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder,” is that homicide shall not, by such means be reduced below murder; and not an implication, that while such provocation, etc., shall not free the person killing from the guilt and crime of murder, it may free him from the crime of voluntary manslaughter. Hence we find no error in the charge of the Court.
3. A consent on the part of counsel for prisoner that the jury may return their verdict to the Clerk, implies a consent that they may disjierse after having done so; and if their verdict is for “ manslaughter,” not specifying the grade, it is not error in the Court to reassemble them, and submit the verdict to them again in order that they may specify the grade of manslaughter, unless the prisoner can show that his case has in some way been prejudiced by reason of the dispersion. The case is different from misconduct on the part of the jury pending the trial; that would throw the onus on the State of proving that the prisoner’s case has not been prejudiced thereby. The verdict is sustained by the evidence.
Judgment affirmed.