Francis Ross (defendant) was charged with first-degree murder after he shot and killed a rival saloon owner. The parties disputed what happened, but the evidence showed Ross tried to provoke the victim by insulting him, resulting either in a gun battle between the two men or Ross shooting the victim unprovoked. However, the prosecution’s (plaintiff’s) evidence showed the victim did not have a gun. The trial court instructed the jury that malice may be implied. The jury convicted Ross of second-degree murder with life in prison. Ross appealed, arguing the trial court should not have allowed the implied-malice instruction.