The appellant was convicted of murder in the second degree; and an appeal was allowed by one of the judges of this court, upon a doubt whether, under the facts proved, the offense amounted to more than manslaughter. An altercation had arisen between the parties, in a country store, after nightfall; growing out of a disputed account; and the proprietor had ordered the disputants to leave the store. The appellant was the first to go out; but stationed himself near the door, with a stick in his hand. Trimble, the deceased, who was • partially drunk, attempted to arm himself with an iron weight, but was prevented by the storekeeper. When both men were on the outside, an encounter with the fists ensued, and Trimble was getting the better of his adversary when the bystanders separated them. They. continued to quarrel, however, and the appellant accused Trimble of relying upon his knife. The knife was then given up into the hands of one of the witnesses. The appellant seems to have clung to his stick —a stout oaken club, two and a half feet long, with a knot on the end of it. After swearing at each other for a while, Trimble threw his coat, of which he had divested himself when he gave up his knife, over his arm, said to the appellant: “Go away from me and let me alone. I don’t want you hereafter to cross my path and I won’t cross yours; ” and was in the act of retiring homeward, when the appellant renewed the combat and killed Trimble with two blows administered with the stick.
From the circumstances detailed and, particularly, from the unlawful use of a deadly weapon, the jury were justified in finding malice—that combination of wrongful deed and mental culpability which distinguishes murder from manslaughter. No doubt the appellant was laboring under an excess of passion; but the provocation or cause of his excitement was not such as the law deems adequate or reasonable. And it is certain that he could have declined the further combat without danger to himself. 2 Bishop Cr. Law, Secs. 675, 680, 697, 700; Mansf. Dig., Secs. 1519, 1533.
The facts in evidence were similar to those in Stanton v. State, 13 Ark., 317, where a verdict of murder in the second degree was upheld, Chief Justice Watkins delivering the opinion of the court. The jury were fairly charged and there is no question 'worthy of. notice except as to the gradé of the offense.
Affirmed.