Bleckley, Justice.
1. It is not probable that the newly discovered evidence would produce a different verdict from that which has been rendered. Giving it all the weight to which it is entitled, it ought not to vary the result. With, as without, this newly discovered evidence, the two gre'at facts remain, that the prosecutor was first obstructed by the prisoner on the highway, and then shot by him. Apparent is it, also, that whatever violence in language or conduct the prosecutor may have exhibited on the occasion, was wantonly provoked by the aggressive action of the prisoner. There is no dispute that the prosecutor, accompanied by several females, was peaceably traveling through the country on the Sabbath day; [433]*433that tlie prisoner, being at the time armed with a deadly weapon, endeavored to arrest his progress, and for that purpose caught his mule by the bridle and failed to let it go when ordered to do so; and that whatever the prosecutor may have said or done, was the consequence of this outrage on the part of the prisoner. Moreover, it is plain from the prisoner’s statement, as well as from the testimony of South, his own witness, that the prosecutor did not strike him with the whip; and even if the attempt to take up a rock preceded the shooting, that was no justification, for had the prisoner behaved himself this would not have occurred. As the prisoner was prepared with a pistol, and was himself the aggressor, what right did he have to shoot the prosecutor to prevent him from taking up a rock ? There was no attempt to throw the rock, and as the shot took effect from behind, the prosecutor was not in a position to throw towards the prisoner at the moment. If death had ensued from the shooting, we can see no reason why such a homicide should not be graded as murder.
2. According to the testimony of South, to say nothing of that of the prosecutor, the verdict was proper. It is amply supported.
Judgment affirmed.
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