
    *Isham B. Oneil, plaintiff, in error, vs. The State of Georgia, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Criminal Law — Murder — Indictment — Evidence — Misnomer— Autrefois Acquit. — Where a defendant, on trial for murder, objects to evidence showing that he killed James Little, on the ground that the indictment charges him with the murder of James Lutle, and the presiding Judge, on inspection, held the name to be James Little, and all the festimony proved that to be the name of the party slain, this Court will not, by an examination of the original indictment, overrule the judgment of the Court below. The testimony in case of conviction is made a part of the record in the case, and had the defendant been acquitted, and afterwards been again put on trial for the murder of James Little, the introduction of the whole record would have sustained the plea of autrefois acquit.
    2. Same — Same—Same—Same—Same—Same—Motion in Arrest.— Under the same rule, this Court will not overrule the judgment of the Court below refusing to arrest the judgment on a motion founded on the same ground, to-wit: “That the name of the deceased in the indictment was Lutle, and the evidence was, that the person killed was named Little.”
    3. Same — Same—Instructions.—Defendant’s counsel requested the Court to charge the jury, “that if they entertained doubts as to the law, the prisoner is just as much entitled to the benefit of those doubts as if they applied to the facts; that if they entertain a reasonable doubt as to whether the evidence is applicable to the law as given them in charge, then the prisoner is entitled to the benefit of that doubt, and it would be their duty to acquit.” And the Court does not charge the written request, but does charge that the jury are “exclusive judges of the testimony. You take the law from the Court, the testimony from the witnesses, see what it is, and apply one to the other. You judge of them, and they enable you to arrive at the truth,” and also further charged, “the mind of a juror must be convinced so that no reasonable doubt remains of defendant’s guilt; that is to say, after you have impartially, carefully and solemnly examined and weighed all the testimony in the case, if your mind is still unsettled, wavering, not at rest, it would be your duty to acquit the defendant, for that is the doubt of the law.”
    Held, That the defendant was not entitled to the first clause of the written request, and though the second clause may correctly state the law on the point contained in it, still a new trial will not be granted, because it was not given in charge just as it was written, when the charge that was given gave the defendant all the benefit he could have claimed under the principle involved in that portion of the written request, which was legal.
    4. Same — Same—Same.—Where the Court charged the jury “that if there is a theory on which the case can be placed, and all of the witnesses speak the truth, that is the true theory, and it is your duty to adopt it. , If there is a basis *on which you can put the case, and all the witnesses speak the truth, it is your duty to adopt that as true,” and immediately adds, “but if this cannot be done, and' the testimony cannot be so reconciled, then look to the witnesses. See what is true and what false. You are exclusive judges of this, and in passing upon it you judge it not in detached portions, but determine the truth or falsehood of each fact by the light of all the testimony in the case. Take each witness as he appears, and is presented to you by this record — by this testimony— as he appeared to you on the stand, and as his statements appeared before you, and from other witnesses in the case, determine who is to be believed, what portion is to be believed and what rejected:”
    Held, That this charge was not error; and it placed no illegal limitation on the right of the jury to disbelieve any testimony or any witness, which, under the law and the evidence, they had the privilege to reject as unworthy of credit.
    5. Same — Same—Oral Direction to Jury. — Where the charge was given on Saturday evening, it was not error for the Court to say to the jury, “if you should make up your verdict at any time before twelve o’clock to-night, let the sheriff notify me, and I will come to the Court-house to receive it.” And the more especially was that not error when the Court added, “but let not the hour control or influence your decision or deliberations. Let not that consideration shorten or lighten your deliberations one single instant. Examine the case carefully.”
    6. Same — Same—Verdict—New Trial- — In view of the whole case, we cannot say that the verdict is not sustained by the evidence, and the law as to manslaughter having been fully and fairly given in charge, this Court will not interfere with the judgment of the Court below refusing a new trial.
    Criminal law. Murder. Indictment. Misnomer. Autrefois acquit. Charge of Court. Reasonable do'ubts. Witness. Jury. New trial. Before Judge Hopkins. Fulton Superior Court. April Term, 1872.
    Isham B. Oneil was placed on trial for the ynurder of James Tittle. The defendant pleaded not guilty. The jury returned a verdict of guilty. The defendant moved for a new trial upon the following grounds:
    1st. Because the Court erred in omitting to charge the jury that if they should find the defendant guilty, they could recommend that he be confined in the penitentiary for life.
    2d. Because the Court erred in admitting, over the defendant’s objection, evidence that the person killed was one James Little, when the indictment upon which he was being tried, ^charged him with murdering one James Lutle, another and a different person.
    (Note by the Judge.) — “The indictment will disclose the name. I thought it was not Lutle but Little.”
    3d. Because the Court erred in refusing to charge the jury as follows: “That a homicide may be reduced to manslaughter where no actual assault has been committed on the person of the defendant, and where no attempt has been made to commit á serious personal injury upon the accused. That if one kill another under the fear of a reasonable man that the deceased was manifestly intending to commit a personal injury upon him, amounting to a felony, the killing is justifiable homicide, if the prisoner is under similar fears of some injury less than the felony, the offense is manslaughter and not murder.”
    ' “That upon the subject of doubts, the simple rule is, that jurors must not convict without plain and manifest proof of the prisoner’s guilt, and that, entrusted as they are with the administration of public justice on the one hand, and with the life, liberty and honor of the prisoner on the other hand, their dut/ calls on them, before they pronounce a verdict of condemnation, to ask themselves whether they are satisfied beyond a reasonable doubt, that the accused is guilty of the charge alleged against him in the indictment, and that if they entertained doubts as to the law, the prisoner is just as much entitled to the benefit of those doubts, as if they applied to the facts.”
    “That if they entertained a reasonable doubt as to whether the evidence is applicable to the law as given them in charge, then the prisoner is entitled to the benefit of that doubt, and it would be their duty to acquit.”
    4th. Because the verdict is contrary to the law and the evidence.
    5th. Because the Court erred in charging the jury as follows:
    “Gentlemen oe the Jury: You have heard this case patiently, and, I doubt not, impartially, as it was your duty *to enter the jury box with perfect and complete impar- . tiality. It was your duty to enter the jurjr box without feeling, without passion, without prejudice, and that duty remains ■with you through the case, until a verdict of guilty or not guilty has been obtained by you. The time never comes to a juror when he can afford to cease to be an impartial juror. He can have no feeling in the case during the exhibition of the testimony, the argument of counsel, the charge' of the Court, nor during the deliberations of the jury; he ends as he begins, an impartial juror.
    
      “The State charges the defendant with the crime of murder, the defendant denies the charge — that makes the issue. The presumption of innocence is in his favor; he begins the trial with that presumption; it is one of law, and belongs to every man who is accused of crime, and it remains with him unto the end, unless-the proof, in the meantime, removes that presumption. The case is to be viewed from that standpoint until the contrary appears from the testimony. It is unnecessary, in this connection, to remind you of what has been truthfully stated by counsel on both sides, that to the law and the testimony alone you must look for your verdict; .Be sure that you do so. Let your verdict be untainted by prejudice, untainted by any consideration other than that which the juror’s oath suggests. That is the verdict which preserves society and compels men to respect the law — all else is mockery. You cannot know, save from the testimony, whether there be prejudice for the prosecution or against the prosecution. You cannot know whether there is feeling on the part of one man, or set of men,, for or against the defendant; and if you know it, of your own private knowledge, you dare not consult it for one moment, in arriving at your verdict.
    “It is said, in the indictment, that the defendant, I. B. Oneil, is guilty of the murder of Little. What is murder? It is the unlawful killing of a human being, in the peace of the State, by
    a person of sound memory and discretion, with malice aforethought, either express or implied. There must be a killing not authorized by law. It must be by a person *of sound memory and mind. The law presumes every man to be of sound mind till the contrary appears, and the killing must be done with malice aforethought. What the law means by malice aforethought, is this: Malice is a state of the mind — an intention to kill, under such circumstances as the law would not justify, nor in any way excuse the intention, if the killing occurs. I repeat, the intention to take the life of a human being, under such circumstances as would not justify nor excuse that intention, if the killing occurred. You will observe from this, there must be a deliberate purpose to take life; the mind must be made up to act; it must have arrived at the conclusion to kill. This malice may be express or implied. It is express when it is manifested by external circumstances, capable of proof. When this deliberate purpose to take life exists, it is express; when it can be shown by external circumstances, capable of proof, such as preparation for the act, lying in wait, threats to kill, previous grudges —matters of that kind — these are some of the evidences of express malice. Malice may exist, and there may be no evidence of express malice, but it may be implied. As before remarked, it is implied where no considerable provocation appears, and when all the circumstances of the killing show a malignant and abandoned heart. If there is a killing and no considerable provocation appears, and all of the circumstances of the killing show a malignant and abandoned heart, the law'implies malice. When an unauthorized killing is shown, the law presumes it was done with malice, unless the proof accompanying it shows that it was not done with malice. If the proof shows an unlawful killing, in the absence of all else, the law implies that it was done with malice aforethought.
    “If the proof that shows the killing itself, discloses that it was done without malice, of course the presumption does not exist, but if the accompanying proof does not, then the burden is thrown on the defendant to show it was done without malice. I may remark to you that it matters not from what quarter the proof comes, if it appears that the killing was done and without malice, of course it was not murder. If *one use a deadly weapon, which in the manner that he uses it was likely to produce death, and death ensues, the law presumes that he intended that result, and that presumption remains until removed by proof. This is the offense of murder.
    “The next grade of homicide to which your attention is invited, is that of voluntary manslaughter, for it is necessary that you should have a clear conception, not only of murder but of this offense also. Manslaughter is the unlawful killing of a human creature, without malice either express or implied, and without any mixture of deliberation whatever; it may be voluntary upon a sudden heat of passion, or involuntary in the commission of an unlawful act, or a lawful act without due caution and circumspection. In all cases of voluntary manslaughter, there must be some actual assault on the person killing or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice either express or implied. Provocation by words, threats, menaces or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as murder. You will observe in all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person' killed to commit a serious personal injury on the person killing, or other equivalent circumstances sufficient to justify the excitement of passion, and exclude all idea of deliberation or malice. What is meant by the expression, “other equivalent circumstances?” Such circumstances as are in effect equal to an assault upon the person killing or an attempt to commit a serious personal injury on the person killing. That is voluntary manslaughter. I give you the *definition of justifiable homicide, it is the killing of a human being in self-defense or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either. A bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the person killing really acted under the influence of those fears, and not in a spirit of revenge. You will turn your attention to this testimony and make the inquiry, first, whether the defendant is guilty of the crime of murder. I have given you the definition of that offense, and the rules governing you in that inquiry, as fairly as I can. Is the defendant guilty of murder, as charged in the indictment ? Did he unlawfully' kill the person named in the indictment? If he killed him, did he do it with malice aforethought, express or implied? If he did he is guilty of murder, and it would be your duty to find him so. If you find that he killed Little, but did not kill him with this malice aforethought that I have before described, inquire if he is guilty of voluntary manslaughter. Was the killing unlawful, and still without malice express or implied, and without any mixture of deliberation in the sudden heat of passion ? If it was, the offense would be voluntary manslaughter, and not murder. I will repeat to you, in this connection, a portion of the definition of voluntary manslaughter: In all cases of voluntary manslaughter, there,
    must be some actual assault on the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied; provocation by words, threats, menaces or contemptuous gestures, shall, in no case, be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion, supposed to be irresistible. If you should find, as *before stated, an unlawful killing, but that it was done under such circumstances as I have before explained, and done without this malice aforethought, he would not be guilty of murder, but of voluntary manslaughter.
    “If you should find from the testimony in this case, that at the time of the killing, in case a killing be shown, Little manifestly intended or endeavored, by violence or surprise, to commit a felony'upon the person of Oneil, and that the circumstances, as they appeared to Oneil, were sufficient to excite the fears of a reasonable man, and he acted under the influence of those fears and not in a spirit of revenge, and he killed Little, it would be justifiable homicide, and it would be your duty to return a verdict of not guilty. Stabbing with a knife, unless it be in one’s defense or other circumstances of justification, is a misdemeanor, unless it is done with intent to commit murder, then it is a felony within the meaning of this law. If one person stab another with a knife, and it is not in his own defense and not under circumstances of justification, and it is not done with the intent to murder, that is a misdemeanor and not a felony. Now apply it to this case. If Little manifestly intended or endeavored, by violence or surprise, to stab Oneil with a knife, and it was not in his own defense, or other circumstances to justify him,in doing it, and it was done with intent to murder, that would be a felony within the meaning of this law; and if Oneil, acting under the influence of the fears created by these circumstances, killed Little, it would be justifiable homicide, and he is entitled to a verdict of not guilty. If Little manifestly intended and endeavored by violence or surprise to stab Oneil, not in his own defense, but without intent to murder, and Oneil killed him, but did not act under the fears that were created by these circumstances, but acted in a spirit of revenge, he would not be justifiable and the offense would be murder. If Little manifestly intended or endeavored, by violence or surprise, to commit an offense on the person of Oneil less than a felony (and I have defined that to you,) and Oneil, acting under the influence of those fears, excited by these circumstances, killed Little from *the influence of those fears, and not from malice, his offense would not be murder, but voluntary manslaughter.
    “It is for you to determine, first, whether the offense of murder has been committed. If not, then inquire whether voluntary manslaughter or justifiable homicide, in case you find any killing, has occurred. A man may have malice towards another, and may kill the person towards whom he entertained malice, and the offense may not be murder. But in a case like that, it must appear, from the testimony in the case, that the circumstances were such as to justify him in the killing; when all the circumstances in the case and the proof shows that he was justified in the killing, then the malice, if he had it before, is not to be taken into account.
    “I have passed over these various grounds of homicide. I have given you the different definitions, and trust you have a . clear understanding of the three .grades that are necessary to understand this case. The object of all this testimony is to enlighten your minds in reference to the facts, and determine what are true. You have but the one purpose in view: to ascertain the truth. You sit as exclusive judges of the testimony. You take the law from the Court, the testimony from the witnesses; you weigh, see what it is, and apply one to the other; you judge of them and they enable you to arrive at the truth.
    “If there is a theory on which the case can be placed, and all the witnesses speak the truth, that is the true theory, and it is your duty to adopt it. If there is a basis on which you can put the case, and all the witnesses speak the truth, it is your duty to adopt that as true. But if that cannot be done, and the testimony cannot be reconciled, then look to the witnesses. See what is true and what false. You are exclusive judges of this, and in passing upon it, you judge it, not in detached portions, but determine the truth or falsehood of each fact by the light of all the testimony in the case. Take each witness as he appears and is presented to you by this record, by this testimony, as he. appears to you on the stand, and as his statement appeared to you, and from other witnesses *in the case, determine who is to be believed, what portion is to be believed, and what rejected. If a witness comes before you, and, upon his oath, willfully and knowingly states a falsehood, knowing it to be a falsehood, that witness is unworthy of belief in any particular, it matters not what he testifies to, whether material or immaterial. I repeat, if he states, on oath, a falsehood, knowing it to be false, and intending to swear it, he is not to. be believed at all, and before a jury would be authorized to believe what he says, it must come from other sources in the case.
    “If a witness states an untruth by accident or mistake and not with a guilty knowledge or purpose, but states it from inadvertence, then that goes to his credit, and it is for you to determine what to believe and what to reject, and in determining that look to all the testimony in the case. A witness may be impeached by proof of general bad character and the opinion of other witnesses based upon that bad character, that they would not believe him on oath; when that is done the witness comes to you with impaired testimony, as before stated in this case; how far his testimony is to be accepted by you, how far it is corroborated by the facts and circumstances in the case, is for you to determine. I might state to you that each witness in the case comes before you with the same presumption of innocence in his favor, and it remains with him until removed by proof to the contrary. The testimony of a witness is to be believed until he is impeached in some of the modes known to the law. Look to all the witnesses in the case; these rules apply alike to them all. Look to the feeling that they may have for or against either of the parties or anything growing out of the case; ascertain what relation they may bear to the case, the state of his mind, then judge of their testimony carefully, calmly, solemnly; you are exclusive judges of that. After you have passed thus over the case, the inquiry will present itself to what extent must I be convinced of his guilt before I find him guilty? What degree of mental conviction shall be mine before I pronounce a verdict of guilty ? That I will explain to you. The proof of the defendant’s *guilt must be made plainly and manifestly to appear; it must be established to a reasonable and moral certainty. It cannot be demonstrated to absolute certainty, that is unattainable by human testimony in a Court-house. But the mind of a juror must be convinced so that ho reasonáble doubt remain of defendant’s guilt; that is to say, after you have impartially, carefully and solemnly examined and weighed all the testimony in the case, if your mind is still unsettled, wavering, not at rest, it would be your duty to acquit the defendant, for that would be the reasonable doubt of the law; but if your mind is not in that unsettled, wavering condition, it would be your duty to convict. It is not for you to make a doubt and then to act upon it. It must be a reasonable doubt arising in the mind of an honest, impartial juror, that grows out of the testimony or the want of testimony in the case. If that doubt' exists, acquit, if it does not, convict him.Take the case and consider it as I have instructed you, and if you should make up your verdict at any time before twelve o’clock to-night, let the sheriff notify me and I will come to the Courthouse to receive it, but let not the hour control or influence your decision or deliberations, let not that consideration shorten or lighten jrour deliberations one single instant. Examine the case carefully. Whether you agree before twelve o’clock or not, it is your duty to observe the utmost circumspection; remain together, consult together, let no two or more of you unless in the presence of the other jurymen, talk about the case. Let all be done and said so that all may hear it. Separate at no time from each other. If you should not agree on your verdict to-night,■ and remain over to-morrow, the bailiff will be instructed to let you go out to take such exercise as you may find necessary, but on no account pass along the public streets, avoid all crowds or communications, go in retired ways, have no conversation with any one. These rules are not intended in your case alone, but apply to all criminal cases.”
    The jury was charged on Saturday evening. The evidence, *being voluminous, is omitted, as not material to an understanding of the decision of the Court.
    The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.
    The defendant moved in arrest of judgment, upon several grounds, but all of them based upon the allegation that he was charged in the indictment with the murder of James Lutle, while he was convicted of the murder of James Little.
    The motion was overruled, and the defendant excepted.
    Gartrell & Steppiens; T. P. Westmoreland; S. B. Spencer, for plaintiff in error.
    J. T. Glenn, Solicitor General, for the State.
    
      
      Criminal Law — Indictment.—See the principal case cited in Ency. Dig. Ga. Rep., vol. 7, p. 372.
    
    
      
      Same — Instructions—Province of Court and.Jury. — In a criminal case “the jury are judges of the law and the facts, so as to enable them to apply the law to the facts, but it is the province of the court to construe the law and give it in charge and of the jury to take the law as given and apply it to the facts as found by them and to bring in a general verdict.” McRea v. State, 52 Ga. 299, citing principal case.
      See also, note to Anderson v. State, 43 Ga. 11.
    
    
      
      Same — Verdict—New Trial. — See principal case cited in Ency. Dig. Ga. Rep., vol. 9, p. 639.
    
   Trippe, Judge.

Objection was made, on the trial below, to the introduction of testimony showing that defendant had killed James Little, on the ground that the indictment charged him with the murder of James Little. On inspection of the indictment, the presiding. Judge held the name to be Little. The defendant was served with a copy before arraignment, in which the name was Little. The bill of indictment was read to him on arraignment, charging him with the murder of James Little, and in all the proceedings had, and in the entries on the minutes, that was the name used. Granting that a question might have been raised, whether the name was plainly Little, or that, in some places where it was used in the indictment, it looked as if it could be read Lutle, and if any one will write the two names, it will be seen that, by making the first “t” in “Little” somewhat short, or the dash in crossing these two letters in that name not of full length, how easily it may be made to have that appearance; yet, if this be so, what damage could possibly have resulted to defendant on that account? It was urged in the argument that “a verdict would be no protection to the defendant, nor could it be pleaded in bar of another prosecution against him for the murder of Little without *alwnde proof,” etc. Is this so? If the whole record of the case were introduced or used, showing the verdict, the judgment, and other proceedings, all possible doubt or question as to the name, which could have arisen, would have been settled by the record itself, and it would have sustained the plea of autrefois■ acquit, had it ever become necessary for that purpose. The defendant did not raise the question of surprise, nor could he have done so successfully, for the copy bill and the arraignment used the name of “Little,” and the plea of the defendant was accordingly entered.

The same reasons constitute a sufficient ground for sustaining the Court below in overruling the motion in arrest of judgment. The Judge had already, on the motion to reject the evidence, held that the name in the indictment was “Little” and not “Lutle.”

The Court was requested to charge the jury, “that if they entertained doubts as to the law, the prisoner is just as much entitled to the benefit of those doubts, as if they applied to the facts. That if they entertained a reasonable doubt as to whether the evidence is applicable to the law as given them in charge, the prisoner is entitled to the benefit of that doubt, and it would be their duty to acquit.” The Judge did not give this request in charge. The defendant was not entitled to the first clause of this request. It uses the word “doubts,” without any qualification as to their character, whether they be reasonable or imaginary. Moreover, we do not think the rule as to doubts has ever been carried so far as to be made applicable to the law. If this portion of the request means that the jurors are judges of the law and must acquit, if they have doubts as to what the law is, it certainly goes beyond any decision yet made, and is inconsistent with the next clause of the same request. See Cook vs. the State, 11 Georgia, 53, as to whether a Judge is bound to give a defendant the benefit of a doubt about the law. That portion of the request which may have correctly stated the law, though not charged as a part thereof, or in the exact words, was substantially given to the jury in the general charge, wherein they were told *that they were “exclusive judges of the testimony, you take the law from the Court, the testimony from the witnesses, see what it is, and apply one to the other. You judge of them, and they enable you to arrive at the truth,” and were further charged, that “the mind of a juror must be convinced, so that no reasonable doubt remains of defendant’s guilt; that is to say, after you have impartially, carefully and solemnly examined and weighed all the testimony in the case, if your mind is still unsettled, wavering, not at rest, it would be your duty to acquit the defendant, for that is the doubt of the law.” This charge gave the defendant all the benefit he could have claimed under the second branch of that request.

It was claimed that the Court erred in the charge as recited in the fourth item in the head-notes to this decision. This charge placed no restriction pn the right of the jury to disbelieve any testimony or any witnesses, which, under the law and the evidence, they had the right to reject as unworthy of credit. It was equivalent to the charge so often given, that a jury is not to be quick to impute perjury to any witness, but to reconcile the whole testimony, one part with the other, if they can, and if they cannot, then to do just what they are directed to do in the latter part of this portion of the charge.

We cannot see how the defendant could have been injured by the Court telling the jury, that “if you should make up your verdict at any time before twelve o’clock to-night, let the sheriff notify me and I will come to the Court-house to receive it.” It was said in the argument that the charge having been given on Saturday afternoon, this was calculated to hasten the jury in their consideration of the evidence and cause them to run over it without due consideration and care. But did not the jury know before the Judge said this, that it was Saturday afternoon and that the next day was the Sabbath ? He stated to them that he would meet them, if necessary, at any hour up to twelve that night. That was an assurance that they should have to that time, without any danger of being kept together on the following day, if the verdict was agreed on by that hour; without this, they might *have reasonably concluded that unless a verdict was rendered at an earlier hour, they would have to remain during the Sabbath. Besides, the Judge added “but let not the hour control or influence your decision or deliberations. Ret not that consideration shorten or lighten your deliberations one single instant. Examine the case carefully.” Take the whole of the charge together on this point and what was said, provided no verdict was agreed on by twelve o’clock, as to the jury being cared for on the following day, and it would seem that it was calculated to produce a directly contrary effect to that complained of as being likely to follow: See the case of Hewitt vs. Brummell, decided at the present term.

It was further insisted that a new trial should have been granted, because from the evidence the defendant was only guilty of voluntary manslaughter. The main facts of the case are, that a dispute had arisen some two months or more previous to the killing, between defendant and the deceased, about some window sash. A law suit resulted, and defendant succeeded in the case. Out of all this, much bad feeling and a strong grudge grew between the parties, and as shown by the evidence, especially on the part of defendant, very violent threats were made by him against deceased. One witness, Bowen, testified that about a month before the fatal rencounter, defendant, in referring to the difficulty about the sash, said: “If Tittle ever bothered him or sooke to him on the street about it. he would cut his damned heart ■strings out. He drew the knife and asked if that would do it.” This was the knife which was so fatally used, and was a heavy, large knife of the bowie-knife kind of blade, and was a very deadly weapon. It is true, the general character of this witness for veracity was strongly attacked. But there was other evidence of a similiar character. R. M. Anton swore that on Wednesday before the killing on Friday, at DeLay’s paint store, on Whitehall street, defendant said in his and DeLay’s presence, that “he (defendant) did not owe any one anything but Rice DeLay, and would not have owed him but for Jim Little, *damned rascal, and he would fix him yet.” Mr. DeLay was in Texas at the time of the trial and was not sworn. Simon Kennedy, who was introduced by defendant, stated that he had heard Little say, “he was not afraid of Oneil’s damned bowie-knife,” and pulling out a common pocket knife, (witness called it a little knife, the blade about two inches long,) said “that was all he wanted for him,” (Oneil.) JVitness told this to Oneil, •who said, in a low tone, “by God, I don’t want him to be afraid of me.”

On the day of the killing, defendant and two others were standing on the corner of Marietta and Broad streets, in the city of Atlanta. Deceased, walking down the street, stopped, and the ordinary salutations were given, deceased saying, “howdye, Belton,” defendant replying, “howdye.” A few remarks were made, the subject of which is not stated in the evidence. Defendant said to Little, “I gained the sash by law.” This was the first reference that was made, so far as the evidence shows, to the irritating cause of the bad feeling between the parties, the feeling which was the source of the threats which have been referred to. Little, excited by this taunt or fling at him, replied, “if you did, you swore to a lie to get them.” Some of the evidence shows it was probable that Little used the words, “damned lie.” Immediately, Oneil struck him in the face with his fist. Deceased caught defendant’s arm, and the testimony leaves it somewhat in doubt whether he struck Oneil. Some of it makes it quite probable, if not' positive, that he did, or struck at him. Defendant thrust his hand under his coat behind and drew his knife and stabbed deceased, about two inches above the groin, inflicting a wound between five and six inches deep, about two inches wide, having a jagged appearance, as if the knife had been plunged in and drawn out. The knife had the effect to do a considerable more cutting by that means. Dr. Heery, the witness who thus .describes the wound,, further describes how the intestines were cut, and the fatal character of the wound, and stated that the knife might turn itself in drawing out. Deceased fell, and defendant immediately ran down the *street, having put the knife in his bosom. The cry was raised to arr.est him and he ran into a store and put the knife behind some boxes, and was arrested at the door as he came out. Deceased died that night from the wound. These are the main facts in the case. Was the jury authorized, from them,'to find a verdict of guilty of murder against defendant? • ' _

Murder is the unlawful killing of a human being ■*.*_’* with malice aforethought, either express or implied. Manslaughter is the unlawful killing, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful- act, without due caution and circumspection. The Code, section 4259, further says': “In - all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement, and to exclude all idea of deliberation or malice† either express or implied. Provocation by words, threats, mem aces or contemptuous gestures shall, in no case, be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden violent impulse of passion supposed to be irresistible,” etc.

Take, then, the case as it was presented to the jury. There was the grudge existing between the parties, the defendant’s threats, his quickness to allude tauntingly to the cause of the bad feeling, the instant reply, by a blow, to the words drawn from the deceased by that allusion, the almost instant use of a very deadly weapon, (the weapon with which he had threatened to kill, in a savage manner,) "the terribly fatal manner in which he did use it, his immediate retreat after the fatal stab, and concealing the weapon, and the fact that deceased showed no weapon; and can it be said that the killing was done under circumstances that excluded “all idea of deliberation or malice, either express or implied?” The jury found that it did not; the Court trying the case refused to intervene *against their finding. We feel that the proper enforcement of the law and the safety of human life, and its protection against a too ready disposition, fearfully prevalent, to murderously strike, cut or shoot on the first or least provocation, forbid our interference.

The jury had the right to believe, and doubtless did so believe, that the defendant had determined to kill deceased whenever the -subject that caused the ill blood was raised or discussed between them. If so, that, beyond doubt, made it a case, of murder.

Judgment affirmed.  