¶1(<dissenting) :
¶2I am incompetent to comprehend how it is error to give-an instruction held sound law in State v. Cain, 20 W. Va. 681, and often since, when the theory presented by it is fairly a subject of inquiry by the jury, under the evidence-instruction No. 1 states a general proposition of law. The evidence shows that the parties had a lawsuit, Dickey claiming something of Tanner, and angry at him; and Dickey made threats of bouncing a rock off Tanner’s head. They met in the presence of Given and Friend, and quarreled, — Dickey commencing the quarrel, — and .came to, blows. Tanner was killed by Dickey with a blow of a rock on the head. It was a question for the jury whether that blow was given with or without provocation. Judge ENGLISH uses Given's evidencé to show that Tanner struck Dickey in .the back with a rock, and thus finds there was severe provocation, and soys,, therefore, an instruction presenting the question whether there was or was .-not provocation was improper: but, very strangely, Judge English forgets altogether Friend’s evidence. He shows no such provocation. He says that, when Tanner told Dickey he had once paid him four dollars for nothing, Dickey called him a *325“God-damned liar,” and drew Ms coat to ñgbt. Given agrees with Dickey tbu'S far. Friend says that they came to blows, when Tanner ran. Dickey followed him, open knife in hand, as Dickey admitted, and Friend saw no blow in the back from Tanner to Dickey. There was eVildjence to show that Given himself contradicted this blow in the back by not mentioning it when narrating the occurrence, just afterwards» when he said both Tanner and Dickey threw rocks so nearly together that he could not tell which threw first. This was a different version. The State openly contested his credit before the jury. Thus, the conflicting versions of the tragedy coming from Given ancTFriend, bearing on the alleged provocation from Tanner’s striking Dickey in the bac^ with a rock were before the jury, and the credibility of the two men, and the question whether, from his threats, it was likely Dickey acted without provocation. The jury was bound to pass on this question. This was the point of debate between the state and thq. defendant. The instruction did not assume there wa-s no provocation, but said to the jury, in general terms, that if there was no provocation, and death was inflicted with a dangerous weapon, it would be in law murder; and, logically, if there was such sufficient provocation, it would not be murder. It did not hint that in the judge’s opinion there was no provocation, or very slight, "but left it with the jury to say whether the facts shown by the evidence fit or suited the instruction. How could it mislead a jury of ordinary sense? This point was not seen by counsel. It seems to me hard to see. Again, as the jury ignored the charge of murder, what has this instruction to do with the case? It bore only on the murder feature. If error, it is harmless, and not cause for reversal.
¶3With regard to instruction No. 6: Judge English goes on the erroneous idea that Given’s evidence is to be taken as conclusive to show an overt act in a blow in the back of Dickey given by Tanner. But was that blow given, was a question for the jury, under the conflicting versions of the occurrence as given by Friend and Given.
¶4And how can Judge ENGlish reverse the circuit judge for the evidence given by the prosecuting attorney? He said only that Dickey’s counsel, in Dickey’s presence, stated *326that Dickey hit Tanner with a rock, and Dickey remained silent. The evidence was admissible. But suppose it was hot; how could it hurt Dickey, when he admitted the same thing on the witness stand? It was not questioned.
¶5To overthrow verdicts and frustrate criminal justice on such light grounds seems to bring criminal procedure into odium and reproach, and increase grave crime. I cannot see my way to agree to this judgment, but, as three judges see it plainly, I may be dull and obtuse. It seems to me to be so plain that lawyers ought not to differ upon it.
¶6Reversed.