¶1At the February term, 1895, of the circuit court of Ozark county the defendant, commonly called and known as Kelsaw Risley, was indicted for the murder of G-arrett Wright on the night of December 24, 1894. The cause was continued to the August term, 1895. The defendant was duly arraigned and put upon his trial at said term and was convicted of *102murder in the second degree and his punishment assessed by the jury at forty years in the penitentiary.
¶2. No error is assigned on the record proper and a careful reading discloses none. No exceptions whatever are taken to the instructions of the court as given, but complaint is made that the court erroneously declined to give an instruction on manslaughter.
¶3There was not a word of evidence to justify the court in giving an instruction for manslaughter not even in the defendant’s own testimony. Beyond the cavil of a doubt the defendant deliberately shot and killed deceased while deceased was eating oysters and at a time when he was giving defendant no provocation whatever for killing him. A careful scrutiny of the evidence discloses nothing but a case of cold blooded, deliberate murder in the first degree and defendant is in no condition to avail himself of the mistaken mercy extended to him by the court and the jury. The judgment of the circuit court is affirmed.