
    Clark vs. The State.
    1. The characteristic ingredient in the offence of murder in the first degree, is the existence of a specific intention to take life; and if that intention be deliberately and coolly formed and acted upon, and death ensuo, the intervention of provocation between the formation of the purpose to take life, and the slaying, will not reduce the offence to manslaughter. Commonwealth vs. Jones, 1 Leigh, 612.
    2. The mere fact, that statements proved by one person to have been made by the prisoner, were not heard by others who were-'present, is not a sufficient circumstance to discredit such person, who is otherwise unimpeached. ■
    Clavlc was indicted in tbe circuit court of Hardeman county, for murder in the first degree.
    He pleaded not guilty, and tbe case came on for trial at tbe June term, 1847, and was submitted to a jury under the direction of judge Dunlap.
    It appeared in evidence, that Clark killed Brewer in the county of Hardeman, in February 1846, by a pistol shot; that Clark said before the shooting, that he would kill Brewer, and assigned as a reason therefor, that he had interfered in a fight in which he was concerned; that after the death of Brewer' he stated that he had killed Mm, and assigned the same reason for his conduct. On the day the killing took place, whilst Clark was in pursuit of Brewer, Brewer gave him a blow of some severity — Clark wa§ intoxicated.
    The facts of this case are more fully stated in the opinion of the court.
    The jury found the defendant guilty of murder in the first degree, and also found that there were mitigating circumstances.
    tie was thereupon sentenced to imprisonment for life in the penitentiary.
    From this judgment he appealed.
    
      John R. Fentress, for plaintiff in error.
    In order to constitute murder in the first degree a design must be formed to kill wilfully, that is, of . purpose, with the intent that the act by" which the life of' a party is taken should have that, effect, deliberately, that is with cool purpose; maliciously, that is-, with malice aforethought; and with premeditation, that is, the design must be formed before the act by which the death is produced is performed. Dale vs. The State, 10 Yer. R. 551.
    The fact that it was malicious and wilful in the common law sense is no.t sufficient. Mitchell vs. The State, 5 Yer. R. 340.
    If a design to kill be formed upon the sudden impulse of passion, disconnected with any previous design-to'kill, though it be executed wilfully and maliciously, it will constitute murder in the second degree only. Mitchell vs. The State, 5 Yer; 340.
    To sustain a conviction for murder in the first degree under the 3d section of. the act of 1829, ch. 23, proof must be adduced to satisfy the mind that the death of the party slain was the .ultimate result sought by the deliberate and premeditated will of the assailant. Dams vs. State, 2 Humph. 439.
    The employment of a deadly weapon whereby death is produced,, although it implies malice at .common law, does not imply that the act was done with such premeditation as to make it murder in the first degree under the statute. Dains vs. State, 2d Humph. 439.
    When the nature and existence of the crime is made by law to depend on the condition of the criminal’s mind at the time and with reference to the act done, drunkenness may be a proper subject for the consideration of the jury,notto extenuate or mitigate the offence; but to show that it was not committed. Swan vs. State, 4 Humph. 136.
    In an indictment for murder in the first degree, the chief ingredient in the offence consisting in a deliberate formed design to take liféj evidence of drunkenness to an extent which absolutely incapacitates the defendant from forming such a deliberate and premeditated design is admissible to the jury to show that the offence has not been committed. Swan vs. State, 4 Humph. 136.
    When fresh provocation intervenes between the preconceived malice and the death, it ought clearly to appear that the killing was upon the antecedent malice, to make it murder, for if there be an old quarrel between A. andB. and they are reconciled again, then upon a new and sudden falling out, A. kills B., this is not murder. East C. L. 224; 1st Russell 616; 1st Hale 451». Copeland vs. The State, 7 Humph. R. 494.
    Whenever death ensues from a sudden transport of passion or heat of blood upon a reasonable provocation and without malice, it is solely imputable to human infirmity, and the of-fence will be manslaughter. 1 Russell 700; Steadman’s case, IstE. Crown Law, 234; 1 Russell 703; 7 Yerger 510.
    
      Attorney General, for the state.
    
      D. Fentress, for plaintiff in error.
   Geebn, J.

delivered the opinion of the court.

The plaintiff in error was indicted in the circuit court of Hardeman county, for the murder of William Brewer, on the 27th day of February 1846, and was found guilty of murder in the first degree, with mitigating circumstances. The court gave judgment for the confinement of the prisoner, for and during his life, in the penitentiary, from which judgment he appealed to this court. It is now insisted, that the court erred, in refusing a new trial, upon the evidence in the cause; that the facts, as proved, make a case of manslaughter only, or at most, of murder in the second degree. We do not deem it necessary to recapitulate the evidence of each witness, or to.state all the facts, in relation to the case, that occurred on the day the homicide was committed. It appears from the proof that Clark, the prisoner, killed Brewer, by means of a pistol shot, in the village of Berlin, in Hardeman county, on the 27th dhy of February 1846. Clark had been at a sale in the neighborhood where he had been drinking, and in the afternoon he went to Berlin about two or three o’clock. Soon after he arrived he met Brewer near Beard’s grocery, and shook hands with him, but told him he had treated him badly, and that he was mad with him. Brewer denied having treated Clark amiss, but Clark persisted in his first assertion, became quite angry and exceedingly abusive to Brewer, who seemed disinclined to quarrel. • Clark continued to curse and abuse Brewer, calling him scoundrel, rogue, and coward, and finally struck him, at which time Brewer seized a chair as if to strike, and Clark ran out of the house. After getting out, he drew a knife, but was taken away by his friends. The wrangling in and about Beard’s grocery, was kept up, with some intermission, an hour or more. During this period, the parties made friends, but Clark soon began the quarrel again. All the witnesses agree, that during this whole period, Brewer (who was much the largest man,) endeavored to avoid the quarrel, spoke mildly, and upon the whole, acted with great forbearance. On the contrary Clark pressed the quarrel upon Brewer, without apparent cause, and by the most abusive language, and the most provoking epithets and threats, seemed determined to excite Brewer to a contest.

After Clark left Beard’s grocery, Brewer also left, and went to Ferguson’s grocery in which several persons were gathered and were drinking. Some ten or fifteen minutes after Brewer went,in, Clark also went to Ferguson’s grocery. Here the quarrel was soon renewed, in what precise manner, the witnesses are not agreed, but the conduct of Brewer was still mild and forbearing, and that of Clark violent and abusive. Clark called Brewer a rascal, and rogue, and said be could whip him, using at the same time the most vulgar profane oaths. Thus provoked, Brewer slapped Clark on the face, which staggered him over some barrels, and Brewer probably, kicked at him as he staggered off from him, whereupon Clark instantly recovering himself fired a pistol, which took effect in Brewer’s side; Clark ran out of the house, and his feet became entangled; he fell at the door, and Brewer pursuing him, felbupon Clark an¿ instantly expired. In addition to these facts that took place at Berlin on the day of the homicide, it was proved by Wyat Robinson, that about ten days before Brewer was killed, Clark, the prisoner, was at the house of the witness, and said, that in a fight between a Mr. Chapman and W. L. Nail, some months before that, a certain man pulled him out of it, and if it ever come in his way he would save him for it. Clark did not name the person. Spencer F. Sullivan proved, that he was at Shaw’s sale on the day of the homicide, that witness and others were standing round a fire when Clark come up, and enquired if Brewer was there; and said with an oath, that he intended to kill him. He employed other threatening language during the day while he was at the sale, and also, after he went to Berlin. Witness does not recollect the name of any of the persons who were around the fire, where Clark threatened to kill Brewer. Norfleet Po>rtis, proved, that after Brewer was killed he went to the house where Clark was, and was summoned as a guard by the constable who had Clark in charge, that he sat down by the fire and thexprisoner asked, if he might sit down by him by the fire, to which witness assented. Witness then asked the defendant what brought about the difficulty. The defendant cited the witness back to*a fight between Chapman and Nail, and said that Brewer had interfered in that, and had pulled, or pushed him back out of that fight; and (uttering a profane oath,) said, he had killed him for it, and would do it again if it was to do over. On cross-examination, the witness stated that he was not certain whether he said he had killed him, or had killed him for it. None of the guard heard this conversation except the witness, that he knew of. It was also proved by several witnesses, that after the quarrel in Beard’s grocery, and before the parties met in Ferguson’s grocery, where the homicide was committed, Clark asked for his tools, (meaninghis knife and pistol that had been taken from him,) and threatened to kill Brewer. Other witnesses proves that he was making threats, at this time, against one Davis, who had cut his head with a drawing knife. The prisoner’s counsel do notinsist, that the verdict of the jury is unsupported by the evidence, if the facts stated by Robinson, Sullivan and Portis, are to be relied on; but it is said, that the confession to Portis, is not to be relied on, because, it would be absurd to suppose the prisoner, after the homicide, would thus voluntarily, admit a motive, which would so greatly aggravate his crime. We do not think the supposed improbability of this confession, is such as to weaken the credibility of the witness. The prisoner is proved to have been intoxicated to some extent, all the afternoon, and to have been in a most reckless state of mind, and it is probable he had not, at the time of this conversation, recovered from his inebriation, so as to be fully aware of his horrible crime, and of its probable consequences to himself. He may, therefore, in this state of mind naturally enough, have said, in his reckless disregard of consequences, that he had killed Brewer, on account of his interference in the fight of Chapman and Nail. And the truth of this statement is greatly strengthened by -the fact that ten days before this he had spoke to Robinson of the same fight, and of the interference of a person in it, that he intended to save, if it ever come in the way. And there is no attempt to attack Robinson’s testimony, or to account for the prisoner’s language to him so as to weaken its force. In addition to this, we have the statement of Sullivan who is unimpeached, that on the day of the homicide, while at the sale the prisoner enquired for Brewer and threatened to take his life. It is true this witness, and Portis, are criticised by counsel, because, they do not name other persons who heard the statements they prove, seeing, in each instance others were near. This is a very slight circumstance, to disparage these witnesses; certainly not sufficient to discredit them, uncontradicted and unimpeached as they are. And the truth of the evidence of the threats previously made, and of the confession, subsequent to the killing, is strongly corroborated and fortified by the conduct of Clark, from the time he arrived at Berlin up to the moment of the fatal act. On first meeting with Brewer, he exhibited his ill blood towards him. It is true they shook hands, but Clark immediately said he was angry with Brewer and commenced abusing him. The disgusting detail of his conduct during that afternoon, presents an almost continuous scene of annoying and aggravating pursuit of, and abusive epithets, addressed to Brewer, calculated, and no doubt intended to irritate Brewer, so as to induce him to strike the prisoner. In this object he failed for a long time. Brewer was much the largest man, and could easily overcome Clark in a personal struggle. He was evidently, greatly disinclined to have any collision with Clark; either because he was conscious of his superior strength, and in the calmness of his quiet temper, despised the bravadoes of his adversary; or because he had seen Clark with dangerous weapons; which he did not intend to give him an excuse for using. Be this as it may, such was the difficulty on the part of Clark to provoke a fight, that he bad the temerity at one time to strike Brewer in Beard’s grocery. He immediately ran out of the house and drew a knife supposing no doubt Brewer would follow him, and this conduct on the part of Clark, commencing the moment the parties met at Berlin, and'kept up until the moment at which the pistol was fired, without any provocation on the part of Brewer on that day, proves beyond a doubt, that the motive for this conduct on the part of the prisoner, originated in some previous offence, which had created ill will towards Brewer. And this conclusion, so evident from the facts that occurred at Berlin, about which there is no discrepancy in the proof, .naturally coincides with the evidence of Robinson, Sullivan and Portis, and corroborates (if corroboration'were necessary,) the statement of these witnesses. Believing therefore, that the facts, stated by these witnesses are to be fully relied on, and there being no question as to the correctness of the verdict, if they are true, we have not thought it proper to discuss the principle which the transaction at Berlin would have raised.

Affirm the judgment.  