
    Johnston’s Case.
    
    A person neither assaulted or threatened, gets down from his horse, arms himself with a club, interposes himself between two other persons who are about to engage in a fight, and kills one of them. It is murder.
    
      John J. Johnston was indicted in the Circuit Court of Warren county, for the murder of John M. Elliott, and he was found guilty of murder in the second degree, and the term of his imprisonment in the penitentiary was fixed at seven years and six months. He then moved the Court for a new trial, on the ground that the verdict was contrary to evidence ; but the Court overruled the motion and entered up a judgment upon the verdict: and the evidence being spread upon the record, the prisoner applied to this Court for a writ of error.
    It appeared from the evidence that for years previous to the time when Elliott was killed, there had been ill will.between the parties, and Johnston had uttered threats against the deceased. On the day when the killing occurred, the prisoner and Walter and Edioin Bowen were riding along a lane about thirty feet wide, looking at a field of wheat belonging to the prisoner. 
      Edioin Bowen was a little in front, riding in a path near the west side of the road; the other two were riding together nearer the middle of the road, the prisoner being nearest to the east side of the road; which smooth quite across it. As they were thus riding they met the deceased, who, as he approached, inclined to the west of the road, and passed between Edwin Bowen and the fence on that side, the space being only three or four feet. As they passed each other, the deceased’s stirrup seems to have struck either that of Edwin Bowen or the fence, and it was drawn off. These parties, who had been brothers-in-law, and at one time very intimate, had not then spoken for four years; and the occasion of their coolness, so far as the record shews, was that Edwin Bowen had married a daughter of the prisoner as his second wife. As they passed each other, Elliott struck Edioin Bowen on the back of his neck. Their horses seem to have been startled, and went some yards before they could be stopped, and whilst they were thus going, each made use of some violent expression to the other. They both got down from their horses about the same time, Elliott probably a little the first. He had then drawn his knife, a large one about eight inches long, and upon Walter Bowen riding up between them, and telling him he was acting too hastily, and requesting him to stop, the only answer he made was to throw of his coat, and to say with an oath, you all mean to attack me, and at the same time he advanced in an oblique direction from the fence beyond Walter Bowen, towards the prisoner. Neither of the witnesses present saw the prisoner dismount, but when they saw him he had armed himself with a piece of a rail, about seven feet long, and weighing about twenty pounds, and had advanced towards Edwin Bowen, and he was in the act of striking Elliott, who was advancing upon him, with his left hand up, and his knife in his right hand. The first blow staggered the deceased very much, and the second, which was given immediately, prostrated him. There was no doubt that the blows killed him.
    
      Cooke, for the prisoner.
   Scott, J.

delivered the opinion of the Court.

It was properly said by the counsel for the prisoner, that there is no question of law involved in this case.

The distinction between murder, manslaughter, and excusable homicide, is well settled ; has been frequently adverted to by this Court; and we feel no difficulty in applying the settled rules of law to the facts of this case.

The prisoner was a volunteer in the affray which resulted in the death of the deceased. When he dismounted from his horse and armed himself with a deadly instrument, he had neither been threatened with, nor was he in the slightest danger of, bodily injury or molestation of any sort.

To say the least, he, without the smallest necessity, or the slightest provocation, deliberately armed himself with the fatal weapon, sought a conflict and killed his adversary.

In so doing he was guilty of murder, without reference to the old grudge. Connecting his conduct with that grudge and his recent threats, it would be difficult to reduce his offence to murder in the second degree. Upon the whole, the Court is unanimously of opinion, that the conviction was right, and the motion for a new trial properly refused.

Writ of error refused.  