
    George Taylor v. The State.
    1. CexmdjaXi Law. Swearing officer in attend jury. If the record in a criminal case shows that the officer placed in charge of the jury “was duly sworn to attend to the jury according to law,” it i's sufficient.
    2. Same. Malicious stabbing. Malice presumed. When. The malice required to constitute malicious stabbing, is malice in its common law signification, and is presumed from the stabbing, and must be rebutted by proof showing circumstances which, if death had ensued, and if the defendant was free from fault in bringing about the difficulty, would have mitigated the offense from murder to manslaughter or excusable homicide, or left a reasonable doubt of the commission of the higher offense.
    3. Same. Provocation. Question of fad for jury. It is the duty of the court to inform the jury to.what extent the passion must be aroused and reason obscured to reduce the grade of the offense, and it is essentially a question of fact for the jury to determine whether the provocation in the particular case was sufficient and reasonable.
    FROM CLAY.
    Appeal in error from the Circuit Court of Clay County. W. N. McCoyyell, J.
    E. L. Gardeyhire for Taylor.
    Attoryey-Geyeral Lea for the State.
   Cooper, J.,

delivered the opinion of the court.

George Taylor has appealed in error from a verdict and judgment against him for the malicious stabbing of G. W. Overstreet, the prosecutor.

Tfre first ground relied on for a reversal is, that the officer placed in charge of the jury was not properly sworn. The record shows that the officer “was-duly sworn to attend the jury according to law.” It is conceded that if the record had merely stated that the officer was duly sworn, it would have been sufficient, the presumption being that the proper oath was administered. The argument is, that the language of the entry in this case shows the form of oath administered, viz., “to attend the jury according to law,”' and as the law prescribes a different form, and requires something more than mere attendance on the jufy, there is a fatal error. The argument is hypercritical. The words used mean the same thing as if the record had said that the officer appointed to attend- the jury was duly sworn according to law. It is only by - wresting them from their plain and obvious sense that any other meaning can be given them..

It is next argued that the verdict is not sustained by the testimony. The stabbing and cutting are not denied. The prosecutor was badly cut by the defendant across the arm, leg and breast, “ some inches in each place.” The prosecutor and the defendant had been to a shooting match the previous day, the prosecutor having a jug of brandy, which, it Avas ’ said, was taken by defendant from the place 'where he had put it. The parties met again the next morning, and the defendant, at the request of the prosecutor, agreed to go Avith him to a place named, where the prosecutor had some business to transact. Some words-passed between the parties at this place about defendant taking the jug. After transacting his business at-the place to which they went together, the prosecutor bought another jug of liquor, and also a pint bottle of the same “perilous stuff,” for “'medicinal purposes.” Armed in this way, they started to go to the prosecutor’s house. On their way, according to the prosecutor’s story, the' defendant asked to see his pistol, fired it off and put it in his pocket. Shortly after-wards they got off their horses, and while the prosecutor was standing with his back to the defendant, the latter came at him with a knife. ' “ I told him,” says the prosecutor, “I was unarmed, got back a little, and begged off, telling him I had nothing against him.” Defendant put up his knife, and they got on their horses and rode along to the residence of one Roach, where the stabbing took place.

The difficulty occurred in the presence of Roach and his son, but the elder Roach • died before the trial. The testimony of the younger Roach corresponds substantially with the evidence of the prosecutor as to what then took place. The witness, says that he and his father were sitting in the porch, and saw the prosecutor and the defendant coming towards them on horseback in an apparently peaceable manner. The 'prosecutor asked witness’ father if he had any brandy, and received a negative reply. The prosecutor then took the witness aside and asked if he had a pistol, and witness replied, “no.” Prosecutor said: “They raised a fuss with me on top of the hill,” and added, he would give his mare and saddle ■for a pistol, the witness adds, “for five minutes,” which the prosecutor denies. Defendant came near where they were standing, and said: “What are you doing, boys'?” The prosecutor made no reply. Defendant then asked the witness why he had told the-prosecutor that he (defendant) had stolen prosecutor’s jug. Witness replied that he had • not said so. Defendant then asked the prosecutor why he had told him so. The prosecutor denied that he had. Defendant retorted, “you did.” Prosecutor, with an oath, said defendant was a liar, and added, “I will' kill you,” at the same time throwing the pint bottle of liquor at him. The bottle hit the brim of defendant’s hat, and knocked the hat off. The defendant sprang at the prosecutor, and cut him three times with a knife. The witness separated them by kicking the prosecutor’s horse, and making him move off. The defendant then threw two stones at the prosecutor, one of which hit him and the other his horse. It seems from these facts that the prosecutor was still on his horse, while the defendant was on foot. Both men had been drinking, and the prosecutor was drunk.

If the jury believed the prosecutor’s statement of the previous attack upon him by the defendant, there would be evidence of malice to sustain the verdict. And even if the case rested entirely on the testimony of the other witness, the existence of malice might be found in the use of a deadly weapon upon inadequate-provocation, or upon a provocation brought about by the defendant with the purpose of using the weapon: Nelson v. State, 10 Hum., 528. The malice required to constitute malicious stabbing, is malice in its common law signification. The law presumes such malice-from the stabbing, to rebut which the proof, either on the part of the State or the defendant, must show circumstances which, if death had ensued, would have mitigated the offense from murder to manslaughter, or ■excusable homicide-, or left a reasonable doubt of the commission of the higher grade of crime: Wright v. State, 9 Yer., 342.

It is objected to the charge, that his Honor, in his full and clear explanation of the law of self-defense, said: “And the defendant must be free from fault in bringing about the difficulty.” The objection is to the use of the word “ fault,” although it is conceded that the word is used in the same connection in the ■opinion of Judge Caruthers in Rippy v. State, 2 Head, 217. But the same word is used in the leading case of Copeland v. State, 7 Hum., 481, and is considered proper whenever the law of self-defense is defined. “The rule of self-defense,” says Mr. Bishop, “is commonly' stated in the American cases thus: If the individual assaulted, being himself without fault, reasonably apprehends death or great bodily harm to himself unless he kills the assailant, the killing is justifiable”: 1 Bish. Crim. .L., sec. 865. The word in this connection has as clear a legal sense as the same word has a popular meaning in common parlance. The whole subject has been recently before us in Hull v. State, at this term, and we refer to the opinion then delivered.

Exception is also taken to the following clau.se of the charge: “ If the prosecutor threw the bottle at defendant with great violence, striking his hat, thus greatly provoking him, so that, under the influence of passion thus suddenly aroused, he fell upon him and ■cut him, it is only an assault and battery, provided you think the throwing of the bottle an adequate provocation for the injuries inflicted.” The objection made in argument is, that the charge means that if defendant fought from passion excited by an adequate provocation he was guilty of an assault and battery at all events, and if he pressed his violence beyond his necessary' defense, then he would be guilty of felony, though no malice intervened. But this is a construction not justified by the language used, and directly in conflict with the whole charge on the subject in the course- of which the clause cited occui’s. The .judge expressly says in this connection: “He (defendant) will either be guilty of the felony charged or the assault and battery, according as to whether he was actuated by malice or .sudden heat of passion.” He was moreover requested to charge, and did charge • as follows: “ If the provocation by a blow be too slight to reduce the killing to manslaughter, yet if accompanied by words and gestures calculated to produce a degree of exasperation equal to what would be • caused by a violent blow from the prosecutor, the ■ stabbing under such circumstances would not be malicious.” The charge not only required malice to fix the defendant with the crime, but defined the provocation which would deprive the stabbing of the character of being malicious as favorably as the defendant -could possibly ask. It is essentially a question of fact for the jury to determine, whether the provocation in the particular case was sufficient and reasonable. The duty of the court is to inform the jury to what extent the passion must be aroused and reason obscured to reduce the grade of the offense, and to say to them if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would reduce the grade of the offense: Seals v. State, 3 Baxt., 454; Jackson v. State, 6 Baxt., 461.

There is no error in the record, and the judgment must be affirmed.  