¶1I concur in all that has been said by Judge Macearlane, and I desire to say that in my ■opinion the verdict of murder in the second degree is not warranted by the evidence.
¶2The meeting between deceased and defendant was itself accidental. Had not the operator, Shores, recalled the defendant, he would not have met the deceased that ■evening. After he returned, he made. no preparations for a fight of any kind. He was still incumbered with ■overcoat, gloves and lantern. The evidence discloses that defendant was a boy of eighteen years, his assailant a man of twenty-seven years, weighing oné hundred and sixty pounds.
¶3The man began the assault, continued it when no •resistance to amount to anything was being offered by defendant; the defendant had received a serious wound ■on his head only a short time before this by collision with a railroad bridge. His attempt to protect his head from the blows of the deceased is consistent with the universal law of self-preservation, and it was only when forced entirely across the office, and when he was completely at the mercy of his antagonist for whom he was ■evidently no match, that he remembered his revolver, pulled it and fired. The most that can be said is that he may have exceeded what was, necessary to protect his life, and, if so, he is guilty of manslaughter only in some degree. But, it seems to me, it is a clear case of .self-defense. One in his condition knowing the danger to his head, from a blow, and seeing no way of eluding his adversary, cannot be held to discriminate with too much nicety as to the amount of force he may use to •protect his life or body from threatened and impending injury. There is no evidence that he sought or brought ■on the difficulty with a felonious intent to kill Tidd or ■do him any bodily harm, nor is there in my opinion •evidence enough to justify a verdict based upon the fact that he voluntarily engaged in the fight. To me it *573appears that Tidd was forcing the fight and defendant was endeavoring to withdraw. If he was so doing in good faith, notwithstanding his imprudent language in the beginning, and his adversary still pursued him, then if taking life became necessary to save his own, he was justified. State v. Partlow, 90 Mo. 608; State v. Hill, 4 Dev. & Bat. 491. But in no view of this evidence was the defendant guilty of murder in either degree.