¶1dissenting.
¶2It seems clear to me from the record that the accused was not afraid of his cousin and knew that all he had to do in order to cause the latter to desist from advances to his wife and to leave his premises was to make his presence known. This is his own statement. But he chose to shoot from ambush at a range of 90 feet and to inflict a bloody and dangerous wound. His purpose was deliberate and premeditated, not only to stop his cousin in the instant attempt in his presence, but to fix him so that he could not repeat the attempt in his absence. As he put it and repeated it in his; own testimony, “I wanted to fix him so he couldn’t do it again.” This being the case, it is trifling with plain words and making nothing of necessary implications to say that the defendant could have been without intent to wound.
¶3Conceding that the instruction of the trial court was erroneous, it was not prejudicially so in view of the defendant’s own testimony, and in my opinion the judgment should be affirmed.