This conviction is for murder of the second degree’ and is based upon the following evidence: Deceased made a dying declaration as follows: “I had been in the woods and picked up a snake, and came to the tent with it in my hand. Defendant was lying on a pallet under a tree, with a book and pencil in his hands. I said to him: ‘ Frank, I have brought you a pet, and will throw it on you.’ Defendant said: (If you throw it on me, I will kill you,’ and then ran around the tree and into *742the tent. I followed to where there were some boxes near the tent, and stopped; when defendant came out of the tent holding a pistol in his hands behind him. I told him to put the pistol up. I still had the snake in my hand and said: ‘Well, let us throw the snake into the pond; and just as I started to throw the snake into the pond, defendant shot me.”
Opinion delivered June 27, 1888.When deceased fell, defendant ran up and caught him and said: “ Mr. Browning, have I hurt you?” When defendant fired the fatal shot, he did not raise his hand higher than his hip. After deceased fell he tried to get defendant to go after his, deceased’s wife, a distance of one mile; and also tried to get him to go for Mr. Woodson, who lived about four hundred yards distant, but he would not go, but went off some where, the evidence does not disclose where, returning in a short while, after some other persons had reached deceased. When defendant returned, he said to deceased: “Mr. Browning, has there ever been any hard feelings between us? It was'an accident; you know I did not intend to hurt you.” Deceased replied: “Frank, I do not know what your intention was.” Deceased stated there never had been any previous difficulty or hard feelings between him and defendant. Mo one was present when the shooting occurred, but the deceased and the defendant. We have thus stated substantially all the facts connected with the homicide.
The charge of the court was very full, embracing instructions upon murder in both degrees, manslaughter and negligent homicide, and also homicide by accident. Mo objection was made to the charge in the trial court, nor is any made in this court.
There is but one question for our determination, and that is-the sufficiency of the evidence to support the conviction. This question we must determine in favor of the defendant. We do not think the evidence shows that the act of killing was accompanied by malice on the part of defendant, but that, on the contrary, it disproves the existence of malice. Malice is not imputed by the law where the evidence tends to show justification, excuse or mitigation, and in this case, the evidence, in our judgment, very strongly tends to mitigate, if not excuse the homicide.
Because, in our opinion, the conviction is not supported by the evidence, the judgment is reversed and the cause remanded.
Reversed and remanded.