There was a party at night, in the week of Christmas. It was given in a small kitchen, and the guests being numerous, most óf them were outside of the building. About nine or ten o’clock, a brother of deceased and a brother-in-law of prisoner, had an altercation in the crowd out of doors, about some apples which the former had purchased from the latter without paying the full price. Prisoner walked up and said the money must be paid now. He drew his knife on the brother of deceased, who stepped back to pull off his coat. Deceased then came up and told his brother to have no difficulty; that he would pay for the apples and stop the fuss. The brother replied, there was nobody there to have a fuss with but that damned Zack Bird, (prisoner.) Deceased, (who, according to one of the witnesses, had a stick in his hand, but there was no evidence of any demonstration with it, or attempt to use it,) said, damn Zack Bird, who is he? nobody cares anything for him. Prisoner swore he would shoot some body’s head off or have the apples back, or have pay for them, or something to that effect. He drew a pistol from his pocket, and shot deceased in the temple, and of the wound deceased died nest morning.

This was murder. Argument could not make the matter plainer to any one who has read the Penal Code.

The charges of the court complained of, if erroneous at all, *319are more favorable to. the prisoner than they should have been. One of them lays down the rule applicable to the ease, if the deceased or his brother procured a stick with which to resist prisoner j whereas, there is no evidence that either of them procured a stick on, or for, the occasion. The most that the evidence suggests is, that the deceased had a stick; but whether he did not bring it with him to the party, or when or where he got it, does not appear. There is no hint in the evidence that he attempted to use it. .The-rule stated by the court is correct, and would have been applicable if the evidence had shown the procurement of any stick. Again, the court charged upon the general nature of the assault requisite to reduce the offense to manslaughter, but there was no evidence of any assault. This, also, was, on that account, more favorable to the prisoner than he had a right to ask. He failed to show any provocation except by words alone. To instruct the jury to search the evidence for any other provocation, was an error full of tenderness to the prisoner. Under the influence of such a charge the jury might have made a mistake in his favor, but could not possibly have made any against him.

Let the judgment be affirmed.