t have picked up a pistol w
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t have picked up a pistol which fell from the hands of deceased, or he was guilty of consummate acting, for the purpose of deceiving witness, and making evidence to defend himself from the charge of a murder which lie intended to commit. It is difficult to believe that on a sudden encounter any one would have such cool deliberation; and it is much more reasonable to believe that the seeking of safety by jumping behind the witness was caused by some movement or other evidence of hostile intent by defendant, which escaped the less vigilant eye of witness, and that it was the display of the pistol which he afterwards picked up. This latter view is supported by other testimony, to be presently noticed.But it is pertinent here to remark that both the effect of this witness's testimony and his credibility was to be weighed by the jury, and that doubt was thrown on the latter by showing that in the preliminary examination he had made statements at variance with what he now stated, which were more favorable to defendant. Take all these together, and we think the court had no right to assume that it was beyond doubt that defendant had commenced the assault, which resulted in death, by firing the first shot without any cause, real or apparent. In this we are confirmed by other parts of the testimony displayed in the bill of exceptions.It is nowhere asserted that defendant fired more than three shots. A witness, however, who was within hearing, swears positively that he heard four shots. In agreement with this, it is proved, without contradiction, that when defendant was arrested, immediately after the shooting, three pistols were found on him. Of one of these, three barrels were empty, of another, one, and the third was fully loaded. The police-officer who arrested defendant says of these pistols: The one identified as Dutch John's had one chamber empty, the one identified as Bean's had three chambers empty, and the Derringer was loaded. It is a fair inference that the three empty barrels were those he had discharged at deceased, and that the other was the one he had picked up after the shooting, which had