
    Jacob K. Wray, Ex parte.
    1. Bail : capital cases. — It is in the discretion of the court, to grant or refusebail to a prisoner, before conviction, when the proof is evident, and the presumption great.
    2. Same. — Prisoners have a constitutional right to bail b efore conviction, in all cases, except for capital offences, where the proof is evident, or the presumption great; and if a 'well-founded doubt exist, that the crime charged is capital, bail cannot be refused.
    3. Express malice. — “ Express malice is, when one, with a sedate, deliberate mind, and formed design, doth kill another; which formed design, is evidenced by external circumstances, discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.” 4 Bl. Com. 199.
    4. Express malice: declarations oe accused — evidence.—The declarations of a prisoner, made at the time he procured weapons for an anticipated difficulty, that he did not intend to use them unless other parties interfered, are sufficient evidence to disprove express malice, if it appear, that he did not attempt to use them in the tight, until he was so closely pressed and violently beaten by his antagonist, that he may be reasonably supposed to have acted as much from instinct as from reason.
    5. Murder : manslaughter. — The prisoner, being much agitated, and disturbed in mind, armed himself with deadly weapons, with the avowed purpose of seeking an explanation from a school teacher, but declaring that he would not use them, unless the school-boys should render it necessary, by interfering against him: he soon afterwards met the teacher, when hot words passed, and the prisoner struck the deceased with his fist, and the "latter thereupon assaulted the prisoner with great violence, and pursued him whilst he retreated : the prisoner then drew his weapon for the first time, and killed the deceased. Held, that it was not murder. Handy, J., dissented.
    6. Express malice. — Express malice may exist, without any previous design to . kill: it is sufficient, if an intent exist to do any unlawful act which would probably deprive the party of his life. Handy, J., dissenting.
    
      1. Murder : mutual combat. — To save the party making the first assault, upon an insufficient legal provocation, from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be upon an equal footing, in point of defence at least, at the outset. Handy, J., dissenting.
    8. Murder : previous malice : weapons. — The rule is well established, that whenever a party having previous malice, provides himself with deadly weapons, intending to use them if necessary in a conflict, and provokes a fight, in which he uses the deadly weapons and kills his adversary, it is murder. Handy, J. dissenting.
    This is a writ of error, sued out by Jacob K. Wray, to tbe judgment of tbe Hon. Phineas T. Scruggs, judge of tbe seventh judicial district, refusing him bail, upon bis application by writ of habeas corpus.
    
    Tbe record is quite voluminous, and many witnesses were examined on both sides. Tbe material facts are substantially as follows:
    Clarke S. Brown, tbe deceased, and one Fearnster, were jointly engaged in teaching, at a male academy, in the town of Pontotoc. Two of the younger brothers of the accused, were pupils in this institution. One of them, a few days before the killing, had been whipped by Brown, for a violation of the rules, and a disregard of the discipline of the school. The other resented this by violent and disrespectful language to Brown, used in the face of the school, for which on Monday morning, the 11th day of June, 1855, he was expelled by Brown and Fearnster. This occurred soon after school was opened, and the young man who had been expelled, left the premises, highly excited and enraged, on account of his expulsion. About ten o’clock of the same day, the accused, appearing much excited or disturbed, applied both to Doctors Fountain and Cain at their office, for the loan of a pistol. These gentlemen had no weapons of that character. He was asked by Dr. Fountain, for what purpose he desired to procure a pistol, and he declined to give his reason. In reply to a similar question from Dr. Cain, he also declined to answer, but said, “ if you will let me have a pistol you will see.” These gentlemen then both asked for what purpose, he wanted the pistol, and, “ he then mentioned the name of Brown, in some way,” but witness did not recollect how, but the accused made no threats against Brown. Witness told Wray, if he had any difficulty on hand, he had better take a stick.
    Wray soon afterwards went to the printing-office, and applied there for the loan of a pistol. He appeared then to be much agitated, and seemed as if he had been crying. The witness asked him what was the matter, and if any one had been imposing on him: he burst out crying ; said Brown; and witness thought he muttered something else. Witness cautioned him against acting hastily, and told him not to lay himself liable to the law. Wray then had some 'conversation with some friends, which was not detailed in evidence, and then said, in the hearing of witness, “ that if he had a difficulty with Brown, he would take a stick to him, and should the boys ‘ pitch in,’ he would use weapons to defend himself. ” He procured a pistol and a bowie knife, at the printing-office. When he was about to leave, some of the company suggested that he had better take another pistol, which was there, and was better than the one he had: he then expressed himself satisfied with the weapons he had with him, and declined to take it. One of his friends proposed’to go with him to the school-house, but he declined the proffered assistance, “ saying that he did not expect to have a difficulty.” Soon afterwards, and about a half hour before the killing, he applied to the president of the board of trustees of the Male Academy, in relation to the matter of the expulsion of his brother, and was advised by him that it was his duty to see about it.
    About fifteen minutes before twelve o’clock he repaired to the school-room, and asked Fearnster for Mr. Brown, and said that he wanted to see him, in relation to the expulsion of his brother. Fearnster replied, “you seem to be much agitated and very angry, and as a friend, I advise you to go away, take time to deliberate, become cool and dispassionate, that you may be prepared to act like a man. Wray then urged the request he had made, saying that he wished to settle that difficulty now.” Fearnster replied, “Mr. Brown and I are both busily engaged, and it • is an unreasonable time, because it will interrupt the school, and that you can select a more seasonable opportunity.” Wray then remarked very respectfully: “ Will you tell Mr. Brown that I will see him on his way to town, or to dinner.” This, witness promised to do, and Wray left, going in the direction towards the town, and Mr. Brown’s boarding house.
    Wray was seen shortly after this, seated in the shade of a tree, (the day being hot,) on the road leading from the school-room, to Brown’s boarding-house, it being the route usually travelled by Brown in going to and from his school. He was not at all concealed, but was seated in a perfectly open space, where he could easily ' be seen by those travelling the road or passing in the neighborhood.
    The school was dismissed in about fifteen minutes afterwards, when Fearnster communicated to Brown what had transpired, between himself and Wray. Brown asked Fearnster’s advice, as to what he should do in the matter, when the latter declared his inability to advise him, and told him that he must act according to circumstances. Fearnster being unable to accompany Brown, on the road, which the latter usually travelled, (by reason of his being on . horseback, Brown’s road being crossed by a ditch, which was impassable to horses,) suggested to Brown the propriety of going around the ditcb with Mm. This Brown thought unnecessary, and proceeded on his usual way; and approaching the place where Wray was standing, they met and had a conversation. Wray accosted Brown by stating to him, that he had imposed on his brother. Brown stated that he had whipped him for a reasonable cause, and would leave it to any reasonable man in town. Some little conversation then took place between them, which was inaudible to the witness. Wray was next heard to say to Brown, that he was a d — d dog. Brown stepped back, his hands hanging down by his side, and Wray struck him with his fist on the head, or arms or shoulders, the witnesses were not positive which. Brown then drew out of his pocket a small whip, loaded in one end, with two and one-half ounces of lead, and struck Wray, (as some of the witnesses think, with the small end of it,) over the head. Brown repeated the blows over the head and shoulders very rapidly, and Wray fought with his fist, until he was knocked down, or nearly down. Wray pulled himself up, catching hold of Brown or his clothes, and commenced retreating backwards, holding up his left hand to fend off the blows, which Brown, who advanced on him, continued to inflict over Ms head and shoulders, until he was cut and fell. At the same time that Wray was protecting himself from the blows of Brown, with his left hand, he was observed to be using his right hand, as if endeavoring to draw a weapon from his pocket. After he had retreated some twenty or tMrty paces, “ Wray was seen to have in his hand a bowie knife, with which he was striking Brown, who in a short time fell, and soon expired.” Brown received six wounds from the knife, two of which only were severe or serious. All of his wounds were in front, except a scratch near the small of the back.
    Wray in a few minutes proceeded to the town, where he was met by two of the witnesses, who, observing that he was staggering and fainty and bloody, assisted him to a room, where he received medical assistance. He had received two wounds on his head, one of them being very severe and serious, being cut nearly to the bone with a blunt instrument: he also had several bruises on his back,— Brown having stricken him with the whip from thirty to fifty times, according to the statement of the witnesses, who saw the fight. Brown was about six feet high, but not fleshy, and Wray weighed one hundred and fifteen pounds. It was in proof, that the whipping given by Brown to the younger Wray was moderate, and such as was usually administered in the school, for similar offences. The knife used by Wray, was ten or twelve inches long, and the whip used by Brown, though small, was stated by some of the witnesess to be sufficiently stout to knock down a man with.
    This circuit judge refused the application for bail, and the prisoner sued out this writ of error.
    
      Fontaine and Bradford, for plaintiff in error.
    Harris, Freeman and Goodman, on same side.
    Glenn, attorney general, contra;.
    
   Fisher, J.,

delivered the opinion of the court.

The petitioner being in custody, awaiting his trial upon an indictment preferred against him by the .grand jury of Pontotoc county, for the murder of one Clarke S. Brown, appliéd to the judge of the seventh judicial district of this state, to be admitted to bail; — and the court, after hearing the testimony, as well on behalf of the petitioner as of the prosecution, refused the application, and remanded him to the custody of the sheriff of said county. The object of the writ of error is, to revise the judgment thus pronounced.

We have given to the testimony, as shown by the record, a patient consideration; and our minds are forced to the conclusion, that under the law which must govern the court, in weighing the evidence, the charge of murder, as made by the indictment, cannot be sustained, and this settles the question as to the prisoner’s right to bail. It is neither required nor proper, that we should intimate an opinion, either as to the innocence of the accused, if we entertained it, or as to any degree of manslaughter, of which he might be thought guilty. The question is unimportant, so far as the present application is concerned, whether the party be wholly innocent, or whether the offence, if falling below the crime of murder, be attended with aggravated circumstances, the result in either case is the same; the party is entitled to his liberty; and the court bas nothing to do but to follow the mandate of the constitution on this subject, and admit the party to bail, on his giving, in the language of that instrument, good securities. The provision of the constitution is as follows: “ That all prisoners shall, before conviction, be bailable by sufficient securities, except for capital of-fences, where the proof is evident, or the presumption great.” The inquiry is, whether the proof in this case is evident, or the presumption great: — that is to say, is the offence, as shown by the whole testimony, one which must, under the law, be capitally punished; for if so, while a court might, in the exercise of a sound discretion admit a party to bail, he could not certainly claim it as a right. But if the offence is not shown by evident proof or great presumption, to be one for the commission of which the law inflicts capital punishment, bail is not a matter of mere discretion with the court, but of right to the prisoner.

But we will proceed to state, with as little comment as possible on the testimony, the grounds of our opinion. We have seen, that the constitution requires that the proof must be evident, or the presumption great. Evident proof or great presumption of what ? That the offence, as shown by the testimony, is one, which the law denominates as capital. When is a party committing a homicide, guilty of a capital offence ? The answer is, when he is prompted by malice to commit the deed for without malice there can be no murder; and if in this case there is no murder, there is of course, within the meaning of the constitution, no capital offence. As no question can arise, under the testimony in this case, as to implied malice, we will inquire whether there is sufficient proof of express malice, or in other words, whether the proof is evident, or the presumption, arising from the facts and circumstances, great. “ Express malice, is when one, with a sedate, deliberate mind, and formed design, doth kill another; which formed design, is evidenced by external circumstances, discovering that inward intention ; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.” 4 Bl. Com. 199. We will now in a very brief manner glance at the testimony; keeping in view what has already been intimated, that as little of it as is possible to present the point, will be noticed, or made the subject of comment. Brown, the deceased, was a teacher in the Male Academy at the town of Pontotoc : two of the prisoner’s younger brothers were pupils of this school; the younger brother had been about a week before the killing, whipped by Brown: but this does not appear to have been noticed by the prisoner. About ten o’clock on the day of the killing, which occurred about twelve o’clock, or a few minutes thereafter, the elder of the two brothers was expelled from the school; and the prisoner, being informed of what had occurred, applied to one or two persons for weapons, — manifesting at the time both excitement and distress of mind. He stated, it seems, to all who approached, on this subject, that his object was to seek an explanation from Brown, and that if he had to have a difficulty with him, he should not use his weapons, but that if the school boys, in the language of the testimony, “pitched in,” he would use his weapons in defending himself.

After a conference with the president of the board of trustees, and being told by him that he, the prisoner, could go and see Brown, relative to the expulsion of the brother from the school, he repaired to the school-house, and inquired for Mr. Brown. Being informed that he was busy, and could not be seen, the prisoner left a message that he would see Brown on his way to his boarding-house to dinner. School being a few minutes thereafter dismissed, Brown, informed of the message left by the prisoner, started to his boarding-house, travelling his usual path, or road. The parties met on this path— appeared to converse a short time, when the prisoner was heard to use an epithet, and was seen almost at the same moment to strike with his fist about the shoulder of the deceased. The deceased was almost at the same same instant seen to draw from his side-pocket, what the weight of evidence shows to be a whip, and with it, to strike the prisoner a severe blow on the head, felling him almost to the ground. The prisoner, catching to the clothes of the deceased, recovered from the fall, and commenced backing; the deceased continuing to use this whip, and to follow up the prisoner. The evidence shows that he backed or retreated about thirty yards, before getting out his weapon, with which he inflicted the mortal wounds on the body of the deceased. The testimony shows that the whip, in the hands of a strong man, was a formidable weapon, having in the butt-end about two and a half ounces of lead, covered in the usual way. This is, as briefly as it can be stated, the substance of the evidence, tending to prove malice. Let it be conceded, that the fact of procuring weapons, going to the school-house, and waiting on the road, must each be regarded as a circumstance tending to prove malice, if unexplained. But how is the testimony, when accompanied by the whole explanation ?

1. The declaration of the prisoner at the time of seeking the weapons, that he did not intend to use them on the deceased.

2. He commenced the difficulty by giving a moderate blow with his fist, thus indicating that his declaration was sincere, and consequently there was no sedate deliberate mind or formed design to kill the deceased.

3. No attempt or effort was made to use his weapon in the difficulty, until the resistance had become altogether disproportioned to the assault, and until he was so closely pressed that he may be supposed to have acted as much or more from the instincts of man’s nature, than from reason, or in carrying out a former design, to kill his antagonist. The worst, under the whole evidence, that can be said against the prisoner, is, that a doubt may exist as to the malice ; and if a well-founded doubt can even be entertained, then the proof cannot be said to be evident nor the presumption great: and if our decision rested alone on this ground — a well-founded doubt, — we should feel ourselves compelled to bail the prisoner.

Judgment reversed, and judgment in this court, admitting the petitioner to bail.

HáNDY, J.,

delivered the following dissenting opinion.

Dissenting, as I do, from the opinion of the majority of the court, reversing the decision of the circuit judge in this case, I will proceed to state very briefly the reasons which I think lead to the conclusion, that the evidence in the record shows a clear case of murder.

The material facts of the case, as shown by the record, are briefly these:

The deceased, was a school-teacher, in conjunction with a gentleman named Fearnster, in the town of Pontotoc, at whose school two of the brothers of the prisoner were pupils. Brown had pun- • ished one of the brothers for improper conduct in the school, and the other had resented it, and acted in such a manner as to destroy the discipline and government of the school. Upon consultation between the two teachers, it was determined that the case required expulsion, and accordingly, the pupil who had been guilty of the insubordination was expelled, and he left the school, with great resentment towards Brown. This occurred on Monday morning, the 11th June, shortly after the school met. About ten o’clock of the same morning, the prisoner, an elder brother of the expelled pupib came to the office of Drs. Fountain and Cain, in the same town, much excited, and wanted to borrow a pistol from Dr. Fountain, who asked him what he wanted with it, and he would not say. He made the same request of Dr. Cain; and when asked by him what he wanted with it, replied: “ he would see, if he would let him have it,” and mentioned the name of Brown in connection with the remark. Shortly after this, he went to the printing-office, and asked for a pistol, much agitated, and mentioning the name of Brown, and muttering something which was not understood by the witness. The witness, Heard, cautioned him to act prudently, and not lay himself liable to the law. He went into another room, where the witness had a bowie knife and a pistol, and had the latter loaded, and came out having these weapons upon him. As he came out, he said that if he had a difficulty with Brown he would use a stick, and if the boys interfered in Brown’s behalf, he would use his weapons, to defend himself; stating, in reply to an offer of a third party, to accompany and assist him in the difficulty, that he did not expect a difficulty. Upon being told, as he came back from the room where he had got the weapons, into the printing-office, that he had better take another pistol, which had been placed there, which was thought to be better than the one he had, he replied, that he was satisfied with what he had. He was next seen talking with Miller, the president of the board of trustees of the academy, who stated that he told the prisoner that he ought to see about his brother’s expulsion from the school. Shortly after this he went to the academy, and called Mr. Fearnster, and was very much agitated and very angry, and requested to see Brown in relation to the expulsion. Fearnster ad- • vised bim to go away, and take time to deliberate and become cool. He urged bis request to see Brown, saying tbat he wished to settle the difficulty now.” Upon being told tbat bis seeing Brown would interrupt tbe school, be requested Fearnster to say to Brown, tbat be “ would see bim on bis way to town or to dinner, when we will settle tbe difficulty.” He then left, and bis request was communicated to Brown, wbo desired Fearnster’s advice, as to tbe course be ought to pursue ; but be declined giving any advice, and they both left tbe academy together shortly afterwards.

Brown left tbe academy, and walked on in tbe path be always walked, in going to bis dinner. Tbe prisoner bad stationed himself on this path, and when be saw Brown approaching tbe place where be was, be accosted bim, and tbe first word tbat was beard was, tbat tbe prisoner told bim be bad been imposing upon bis brother. Brown replied, tbat be bad whipped bim upon very reasonable cause, and be would leave it to any reasonable man in tbe town. Tbe prisoner then called bim a damned dog. Brown stepped back, and tbe prisoner struck bim with bis fist, Brown’s band then banging down by bis side. Brown then took from bis coat pocket a small leather whip, of flexible leather, which be was in tbe habit of wearing in bis pocket, with a leathern handle, at tbe end of which there was lead, of about two ounces or two and a half ounces weight. Tbe witnesses speak of it as a small whip and when they saw it in Brown’s band, some of them thought it a hickory withe. Upon receiving tbe blow, Brown commenced striking tbe prisoner over tbe bead with tbe little end of tbe whip, and tbe prisoner striking with bis fist, Brown continuing to advance upon bim, and strik ing bim with tbe whip, and once when Brown struck bim, be fel-nearly to the ground; and when be got up be commenced backing and endeavouring to draw bis weapon, Brown continuing to whip bim over tbe bead. So soon as tbe prisoner drew tbe bowie knife, be commenced striking Brown with it, and in a short time Brown fell. Tbe knife was about twelve inches long, and tbe blade seven or eight inches. Brown died very shortly of tbe wounds inflicted, which were six in number.

Ur. Fountain dressed tbe wounds of tbe prisoner after tbe fight He bad a contused wound on tbe side of tbe bead, extending to tbe bone, about half an inch long and nearly as wide, supposed to be • made by some blunt instrument; and some bruises on his shoulders and back, — some four or five.

The prisoner is not shown to have had any stick or cane, nor does it appear that there was any interference by the boys in behalf of Brown.

The question which lies at the foundation of this case, is, whether the evidence shows previous malice on the part of the prisoner.

It seems to be considered by the majority of the court,-that in order to constitute malice, it is necessary to show a previous settled purpose, absolutely to take away the life of the deceased, or a threat showing such an intention.

I think such a position wholly unsustained by authority, and unfounded in legal principle.

Malice, which is essential to murder, is defined by Blackstone, to be “ any evil design in general, the dictate of a wicked, depraved, and malignant heart,” and mayvexist without any fixed purpose to take the life of the individual. The evidences of this malice towards an individual are lying in wait, antecedent menaces, former grudges, &c. 4 Bl. Com., 199. Roscoe says, “ the malice necessary to constitute the crime of murder, is not confined to an intention to take away the life of the deceased, but includes an intent to do any unlawful act which may probably end in depriving the party of life.” Roscoe, Crim. Ev. 708, 4th Amer. edit.

Here, it-seems to me, there cannot be a reasonable doubt that the prisoner had a previous grudge against the deceased, and that he lay in wait for him ; either of which facts would be sufficient to show express malice. Laboring under a feeling of animosity and a desire for revenge for the alleged injury done to his brother, he is diligent in procuring the most deadly weapons, plainly indicating by his declarations, that he intended to seek a difficulty with the deceased. It is most probable that he intended to inflict some corporal punishment upon him, sufficient to disgrace him, and consider that, if submitted to, sufficient revenge for the alleged injury. This is the most favorable construction that can be put upon his conduct. But if that was his expectation, it is manifest that he did not intend to make the experiment without being amply prepared, if necessary by a vigorous resistance, to take the life of his antagonist.

It is said that his declarations to Heard and Winston, that he did not intend to have a difficulty, (by which I suppose it is understood that he did not intend to make an assault upon him, with his bowie knife and pistol, and his declining the proffered aid of Winston who, supposed from his conduct, that he was about to enter into such a conflict,) show that he had no idea of provoking a difficulty, which would end in the shedding of blood. But this excuse for his conduct is altogether destroyed by his subsequent conduct. It might possibly have been true, that when he left the printing-office, he merely intended to chastise the deceased with a cane, and and not to use his weapons,' unless the boys interfered in behalf of the deceased. But his subsequent conduct, when he called at the academy, his great excitement, and his declaration to Fearnster, that he wished to settle the difficulty then, his appointing the place to meet the deceased, his conduct when they met, which altogether excludes the idea that he intended any thing else than a personal conflict, and his failure to carry out his intention, as declared, to use a stick, and not to resort to his weapons unless compelled by the interference of the pupils, all go clearly to show, that he intended to bring on a conflict, and if necessary by resistance, to use the weapons he had provided himself with, against the deceased. i

In the case of Green v. The State, it was held by this court, that “ if the defendant went into the fight, having upon his person a deadly weapon, intending from the first to use the same, if necessary to enable him to overcome his antagonist, and did in the fight use the same, and killed his antagonist, he is guilty of murder, although he habitually carried the weapon — decided at April Term, 1854, and not yet reported.

It appears to me, that the mind cannot hesitate a moment in saying that all the terms of this rule, are filled by the evidence in this case.

I take the rule to be sound and well established, that whenever a party, having previous malice, provides himself with deadly weapons, intending to use them, if necessary, in a conflict, and he pro-voices the conflict, and uses the weapons and kills his adversary, it is clearly murder. Roscoe, Crim. Ev. 724. Whatever may have been his intention when he left the printing-office, as to using the weapons, it is clear that he must have changed it; for he did not use the stick, as he there said he intended to do, and his conduct after his visit to the academy, is susceptible of no other view than that he then intended to bring on a personal conflict, at all hazards, though it might end in blood, for which contingency he was fully prepared.

But it is said that the killing is extenuated, because in the conflict, he was hard pressed by the blows of the deceased, and only resorted to his weapon to defend himself against the fierceness of his adversary’s blows: that the killing must be regarded as the result’ of that furor brevis produced by the violence of the assault upon him, and cannot be ascribed to the original malicious purpose shown by his conduct.

I dissent in boto from this view, and I do not think that a case can be found to support it, when the conflict was provoked by the prisoner, who had provided himself with deadly weapons, to be used if necessary, except in some cases of mutual combat, and when the parties fight on equal terms, as was the case of the State v. Hill, 4 Dev. & Batt. Eq. Cases, 491. The true doctrine upon the-subject is thus stated by Roscoe, 724: “It frequently becomes a most important question, in the proof of malice, whether the act was done under the sudden influence of such a degree of provocation as to reduce the crime from murder to manslaughter. The indulgence shown to the first transport of passion in these cases, says Mr. Justice Foster, is plainly a condescension to the frailty of the human frame, to the furor brevis, which, while the frenzy lasts, renders the man deaf to the voice of reason. The provocation, therefore, which extenuates in the case of homicide, must be something that the man is conscious of, which he feels and resents at the instant the fact which he would extenuate is committed, not what time or accident may afterwards bring to light. Whenever death ensues from sudden transport of passion, or heat of blood, if upon a reasonable provocation and without malice, or if upon a sudden combat, it will be manslaughter; if without such provocation, or if the blood has had reasonable time or opportunity to cool, or there be evidence of express malice, it will be murder; for in no instance can a party hilling, alleviate his case by referring to a previous provocation, if it appear by any means, that he acted upon express malice. When the provocation is sought by the prisoner, it cannot furnish any defence against the charge of murder.”

It appears to me, that the circumstances of this case, bring it fully within the condemnation of these just and salutary rules; and that the rule by which this case could be reduced to manslaughter, would be equally unsustained by authority, subversive of the wholesome penal laws of the state, and dangerous in the extreme to the peace and safety of society.

But the killing, in this case, cannot be reduced to manslaughter, even upon the principles applied to eases of mutual combat; for in order to lessen the crime to manslaughter in such cases, it must appear that the accused sought or took no unfair advantage. “ To save the party making the first assault, upon an insufficient legal provocation, from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be upon an equal footing, in point of defence at least, at the outset.” Roseoe, 738. “But,” says, Mr. Justice Bayley, “if a party enters into a contest dangerously armed, and fights under an undue advantage, though mutual blows pass, it is not manslaughter, but murder.” Whiteley's Case, 1 Lewin, C. C. 173, cited Roseoe, 739. And this case falls fully within these rules.

In any view in which this case can be legally regarded, I think the evidence shows a clear and unmitigated case of murder, and that the circuit judge acted properly in refusing bail to the prisoner.  