¶1 delivered a dissenting opinion.
¶2 In order that my views may be clearly understood, it will be necessary for me to restate the case and include some facts therein that I deem material, not set forth in the main opinion. I will not pause to do this, but will simply say that I am of the opinion that the requested instruction limiting the conviction of the appellant to manslaughter was properly refused. The evidence justified a conviction of either murder or manslaughter, depending on the presence vel non of malice on the part of the appellant when he fired the fatal shot. This was a question of fact for the jury.