¶1 (dissenting). The undisputed evidence in this case discloses that at the time the fatal shots were fired by appellant, he was being attacked by the deceased and the son of the deceased. The deceased was wielding a bottle of beer and the son a bottle of wine. In these circumstances I think the elements of premeditation and deliberation, which were necessary to support a conviction of murder in the first degree, were lacking. This court in Dowell v. State, 191 Ark. 311, 86 S. W. 2d 23, held: “In a prosecution for murder, the manner in which the killing was effected is a potent circumstance tending to prove or disprove premeditation and deliberation.”
¶2 It is my view that the evidence, when considered in its most favorable light to the appellee, would not support a conviction for a higher degree of homicide than that of murder in the second degree, the punishment for which may not be more than 21 years in tlife state penitentiary.
¶3 It is within the power of this court to reduce the crime to the lower grade. Phillips v. State, 190 Ark. 1004, 82 S. W. 2d 836. It is my view, therefore, that the judgment should be modified, by assessing appellant’s punishment at 21 years in the state penitentiary, and as so modified, affirmed. ■