The opinion
Henry, J.,
Dissenting. — I think that the court should have given an instruction upon manslaughter in the 4th degi-ee. In refusing it, the court assumed that defendant opened his knife before the combat commenced, and, that he was prompted by his malice towards deceased to seek a difficulty with him. Two questions, which it was the province of the jury to pass upon. The evidence shows that at one time, before the fight commenced, defendant had his knife open, but it is equally jaositive, that before the-combat, he shut his knife; what he did with it, does not appear. He was not seen to open it afterwards. It was not afterward seen in his hands, and the only evidence to show that he opened the knife before the fight began, was, that “he was seen to put his hands together, as though he was opening his knife.” If it was a material question whether the knife was again opened, before the parties engaged in the conflict, was it so clear and manifest, that it was opened before the fight, that the court could assume that fact? Was the evidence so clear and conclusive that *695 defendant called the deceased to him, not as he said, to have a settlement of their pecuniary difference, but in order to provoke a difficulty, and get an opportunity to kill him, or do him some great bodily harm, that the court could assume that, as a fact in the ease?
With due deference to my associates, 1 think not, and, therefore, enter my dissent.