Miles

The appellant was indicted for murder, and convicted of manslaughter. He moved upon a bill of exceptions for a new trial, which was denied, and the Court sentenced him to imprisonment in the State Prison for the term of seven years.

*208 There was evidence introduced on the trial which tended to prove that, thirty or forty minutes before the homicide, the deceased and the defendant, in their respective wagons, each accompanied by two other persons, met upon the highway in the vicinity of their homes. The deceased and his friends were in a covered wagon, the latter occupying the front seat, and the former sitting upon a scat in the rear of the wagon. There was a gun in the wagon, and when the two wagons were nearly abreast, the deceased got out of the wagon, seized the gun, and fired at the defendant, but did not hit him. The horses attached to the wagon in which the defendant was riding became frightened, and started to run. The defendant, however, managed to discharge a gun, which he had, twice at the deceased without effect.

The defendant and his party, of which his brother was one, returned to the latter’s house and put up their team. The defendant, armed with a rifle,…