The opinion
Hill, C. J., (concurring.) I concur in the law as stated by Mr. Justice Riddick, and think that his opinion demonstrates that an error was committed in compelling appellant to use a peremptory challenge on a juror who should have been excused by the court as not properly qualified to try the case. But I do not concur in holding that such error is prejudicial, because I think the testimony of the appellant himself proves his guilt of the crime of which he was convicted — murder in the second degree.
The evidence of the State made out a case of murder in the first degree, and to meet it the appellant took the stand and told in substance this story:
That the deceased, Ratcliff, had been visiting his home, and several days before the killing his wife told him that Ratcliff had insulted her, and tried to get her to run away with him. Notwithstanding this information from his wife and its repetition from his son, he was drinking with Ratcliff in Atkins, the town near where they lived, on the day of the tragedy. He left town with Ratcliff and his companion, Warner, who lived together. He was riding, and they were walking, and he carried for them some meat they were taking home. Ratcliff was enlivening the homeward journey with music from his fiddle. When they came to “the double bridges,” a point where their roads separated, ap-. pellant called to Warner to get his meat, and Warner replied insultingly; and appellant rode on towards them to deliver the meat. Just when he dismounted does not appear. Ratcliff laid down his fiddle, took out his knife and started towards him. He told Ratcliff to let him alone, and continued in this language: “When I got ferninst him, he struck me. When he struck me, I struck him. I was drinking, but remember seeing his knife as he came up to me. I saw Warner coming back to us, apparently trying to open his knife,-and I turned and walked back towards my mare.” This occurred in the. cross-examination: “You killed him, from what I understand from you, for insulting your wife?” “Yes, sir; that was the biggest part of the trouble.” It was further developed in the cross-examination that he had been-drinking-with Ratcliff in town, and that he did not then resent the insult because he “dreaded a racket.” , He said he was pretty drunk when he killed Ratcliff, but admitted sufficient knowledge of the situation to render a plea of drunkenness futile. This was appellant’s version of the affair, and it will be noted that the only variation from the usual “hip pocket story” is that it was a knife in this instance. The other testimony showed Rat-cliff was stabbed three times, two of which wounds were immediately fatal. Ratcliff’s knife was found unopened in his pants pocket, and the only thing in his hands was the fiddle.
But test appellant by his own evidence alone, for the purpose of this inquiry. He advanced with open knife on his drunken companions, when one of them shouted an insult to him. Then, instead of retreating from a fray which he says was imminent, he advances to it. It is true, he says Ratcliff struck him first, but he does not say he was struck with a knife or other deadly weapon. He failed to show evidence of the blow, and knives usually leave traces. In fact, the feeble effort at self-defense is abandoned when he admitted the insult to his wife was “the biggest part of the trouble.” This insult,'if in fact the insult was not a nunc pro tunc convenience, had not stricken too deeply to prevent his carousing with the giver and accommodating him and his companion; and yet, forsooth, he grows suddenly indignant over it and advances upon and slays the giver of it. His sensitiveness to the insult came rather late. In my opinion, these facts, developed from the appellant himself, prove his guilt of murder in the second degree at least, and hence render innocuous the error in impaneling the jury. As two judges have voted to reverse the case on account of that error, I find by accommodating my opinion to that of the other two who vote to affirm for manslaúghter that my views are more nearly met than by reversing the case, and therefore I concur in the judgment.