¶1(dissenting).
¶2Judge Anderson and I dissent from the affirming opinion on the ground that the uncontradicted evidence in *142the case shows the appellant was guilty of no greater crime than manslaughter. The undisputed facts in the record show the appellant was being advanced upon by the deceased and another white man for the purpose of assault, and that the appellant backed away from them about fifty feet into the middle of the street. While so backing from them, and while they were advancing upon him, he repeatedly told them to stop. Page 14 of the record discloses the undisputed testimony in the following words:
“Q. All right, when the white man started towards Clinton what did Clinton do % A. ■ He backed up, and told him not to come on him.”.
¶3At another point it is shown without dispute that the appellant backed away some forty or fifty feet, and warned the deceased to stop, but the deceased continued to advance, whereupon the appellant fired the fatal shot. All witnesses to testify. Under this proof the appellant could be guilty only of' manslaughter, if guilty at all, under the Williams Case, 120 Miss. 604, 82 So. 318; Williams v. State, 121 Miss. 433, 84 So. 8, in which it is held that where the deceased shot to prevent an assault it could be no more than manslaughter. Also see the recent case of Williams v. State, 127 Miss. 851, 90 So. 705.
¶4The record in this case further shows the appellant shot the deceased as the result of a sudden difficulty brought about through a controversy about the collection for a load of wood. The parties were strangers before they met on this occasion. The appellant did not arm himself after the quarrel, but he armed himself before the parties had any dispute or hot words, and even before they had spoken angrily to each other. Under this phase of the proof it was a killing in the heat of passion upon sudden provocation, and not a premeditated homicide. The cases I have cited are in point, and ought to be followed, or overruled, by the majority herein.