
    Allen vs. The State.
    A seeks B, and threatens his life; they meet; a quarrel ensues; B strikes A with his fist; they separate; A attempts to.arm himself with a stick, which he is unable to do; again stoops to raise another stick or billet of wood of a dangerous kind; whilst stooping B stabs him: Held, that this was not murder, but .manslaughter.
    To constitute murder, there must he malice, either express or implied.
    Allen was indicted in the county of Shelby, for the murder of Jones. The proof appears to have been, that Allen lived on the Arkansas side of the Mississippi, opposite Memphis; that he, and J. Reaves, had crossed the river, and were in Memphis, on the twenty-seventh day of March last. J. Reaves, the witness, being at the landing, the deceased asked him where Allen was. Witness told him he was in town, but did not know where; deceas-_ _ . ., ,.r ... threatened Allen s lile, Witness, withm ten minutes, communicated the threat to Allen, who proposed that they should return across the river. Allen, while waiting for Reaves, who had to return to town, on the bank, in view of some boats to which the deceased belonged, was approached by the deceased. Several'witnesses substantially agree in proving that they heard loud and angry words between the deceased and Allen. The latter told the deceased to go away; part of what was said was not distinctly understood, as witnesses were not near enough. Allen put his hand to his side; deceased damned him, and said he did not care for his knife. ■ As he turned, Allen struck at him with his fist, but did- not hit him; a fight ensued, and after being engaged some time, they separated. Deceased immediately retreated a few feet, and reached for a stick; Allen also seized the same stick; it was fast in the ground, and neither got jt up. The deceased, letting it go, laid hold upon another; it was four feet in length, of strong timber, and near two inches in diameter. While in the act of getting it up, Allen stabbed the deceased, and retreated; deceased pursued him with the piece of limber. The boat’s crew, who were spectators, cried out to Jones, who was their companion, “kill him! kill him!” and they, with billets of wood, joined in the chase. Allen ran into town; Jones languished a few days, and died.
    In submitting the cause, the judge charged the jury, “that it was incumbent for the State to make out the prosecution by clear and satisfactory evidence of the prisoner’s guilt, as charged in the bill of indictment, beyond a reasonable doubt; that théir minds should remain at rest on that subject; for it was better that the guilty should go unpunished, than that persons should be punished on doubtful testimony; not that a mere possibility of his innocence might exist, without acquittal, but that doubts to acquit him should be reasonable. That if the jury believed that the parties were engaged in fight, and that no deadly blow had been struck, and the prisoner showed a disposition to quit the conflict, was unable to do so, on account of the danger of his own life, and-from mere necessity took the life of the deceased, to save himself, it will be excusable, on account of showing a disposition of quitting the combat without shedding blood, and the prisoner should be wholly acquitted.” “.But if the first assault was given by the prisoner, without provocation, and a scuffle ensued, and preparations were making and made by the deceased, to defend himself with a club, but no assault was by him made, such preparation to defend, by the deceased, would not have authorized the prisoner, with a weapon likely to produce death, to take the life of the deceased; and .if he did so, except from unavoidable necessity in saving his own life, it is murder.”
    "Verdict, guilty; rule fora new trial; which, on argument, was discharged, and sentence of death passed upon the prisoner.
   Pecií, J.

delivered the opinion of the court.

On the facts of this case, we are of opinion that the offence was not murder. Express malice was not proved. Allen w.as sought for by the deceased; words of heat ensued; what these words were, or who commenced them, we cannot learn from the testimony; but the most rational inference is, that they proceeded from him who threatened and sought for Allen;, and it was not unreasonable that Allen, thus threatened and assailed, should tell the deceased to depart from him. It is enough to say, that no act, from which malice could be inferred, was done by Allen at the outset. He drew no deadly weapon; he made a common assault with his fist; the other fought with him, quit the combat, and instantly endeavored to arm himself; failing in the first attempt, he made the second; laid hold upon a billet of wood. That he intended to use it against Allen, and that it was a formidable and dangerous weapon, is obvious. Allen then struck the deadly blow. What is this but an homicide, resulting from a sudden quarrej an¿ affray ? The charge of the court, as it is found in the record, is certainly subject to ^observation. Supposing it probable, from the defective manner in which that record is made out, that we have but an imperfect view of the law, as it was delivered to the jury lay the judge, we forbear to comment upon it. We would rather suppose an hiatus in the bill of exceptions, than bring ourselves to the conclusion, that he, charged with the life of an individual, could, in a casejof the character before us, lose sight of the discriminating marks which establish the boundaries between murder and manslaughter. In drawing this distinction, what constituted malice should have been laid before the jury. On this, which was the main point, the record is silent.

Let the judgment be reversed, and cause remanded for a new trial.

Judgment reversed.  