
    Redding Evans, plaintiff in error, vs. The State of Georgia, defendant in error.
    1. Even immediately after an assault endangering life or limb, the killing of an assailant by the assailed will be manslaughter, if it be apparent that the assault, and with it the personal danger of the assailed, had ended, and that the mortal wound was inflicted as the assailant had ceased from the attempt, and was retreating.
    2. It is no sufficient ground for a new trial that illegal evidence was admitted, when no objection was made to its introduction when offered, nor at any time anterior to the rendition of the verdict.
    3. On the trial of a free person of color for the offence of murder, it is no error for the Court to charge the jury, “that it was not necessary for them to be satisfied beyond a reasonable doubt that the prisoner was a free person of color; the question of his status in society had nothing to do with his guilt or innocence, but that it was merely descriptive ; and that if they were satisfied from the evidence that he was a free person of color, that was sufficient on that point.”
    Indictment for murder, in Miller Superior Court, tried before Judge William C. Perkins, at April Term, 1861.
    The facts and circumstances attending the homicide in this case, as shown by the testimony, are substantially as follows:
    Redding Evans, the accused, was the reputed son of one Dolly Evans, who was generally known and regarded as a free person of color — a mulatto, half black and half white; the defendant lived with, and called Dolly IjCvans mother, when he was a boy, but had been known to deny that she was his mother; James Smith, the deceased, wras a married man, but at the time of the homicide was living separate from his wife; some time before the difficulty, Evans and Smith had been unfriendly, on account of Evans’ criminal intimacy with Smith’s wife; they had also had a misunderstanding about some chickens of Evans’ eating -up some growing corn belonging to Smith, and Evans told Smith he had better not bother his chickens, for he, Evans, might kill him if he did. On one occasion, Smith, his wife, and Evans, were all on the bed together, and Evans and Mrs. Smith were under the cover; Smith ordered Evans out of the house, but he did not go; Smith then went out, and ' Evans followed him and knocked him down, and made him come back in the house and sit down, aud Evans then went back to bed with Smith’s wife, in the presence of Smith and his children; Evans was in the habit of going to bed with Mrs. Smith. On an occasion previous to the homicide, Evans said, that Smith was no benefit to the country, and if he bothered him, he, Evans, would cut his throat; on another occasion, Evans, in speaking of Smith, said, that the latter had bothered him a good deal, and if he did not mind he would put him where the dogs would not bite him; that they had him on a scout from a warrant, but that he did not intend to leave; and that if they did not let him alone, he would kill some of them; he further said, that if they would let him kill Smith and Cook, and beat Ranew, they might do what they pleased with him. Evans had threatened to kill Smith on other occasions. On the morning of the homicide, Smith went to the house where his wife and children lived, because, he said, that he had heard Evans was going to run away with his wife, and was going down after his children. Smith had been at the house where his wife lived but a few minutes before Evans also came, and as Evans approached the house, Smith fired upon him with a singlebarrelled shot gun, aud wounded him in the side. Evans then fired upon Smith five times, with a revolver, wounding him in the side, on the arm, and twice in the abdomen, of which he died in a few hours. The homicide occurred in Miller County, on the 25th day of December, 1859. Smith was walking around and off from Evans, when the latter killed him. The record does not show that any exceptions were taken to the competency or admissibility of any part of the testimony offered on the trial.
    The presiding Judge, amongst other things, instructed the jury “that it was not necessary for them to be satisfied beyond a reasonable doubt that the prisoner was a free person of color; the cpiestion of his status in society had nothing to do with his guilt or innocence, but that it was merely descriptive, and if they were satisfied from the evidence that he was a free person of color, that was sufficient on that point.” The jury rendered a verdict against the defendant, of guilty of voluntary manslaughter, and his counsel moved for a new trial on the following grounds, to-wit:
    1st. Because the verdict was contrary to the evidence, and strongly and decidedly against the weight of the evidence, and contrary to law and the charge of the Court.
    2d. Because the Court erred in charging the jury as hereinbefore set forth, as to the proof necessary to sustain the allegation in the indictment, that the accused was a free person of color.
    3d. Because the Court erred in permitting the State to prove that it was the general reputation in the neighborhood that Dolly Evans. was a free • person of color, and that she was reputed to be the defendant’s mother.
    4th. Because, under the testimony, the defendant should not have been convicted, as the homicide was justifiable.
    The Court overruled the motion and refused the new trial. That decision is the error alleged in the bill of exceptions.
    A. Hood, for plaintiff in error.
    F. D. Bailey, Solicitor General, contra.
    
   By the Court

Jenkins, J., delivering the opinion.

After verdict in the Court below, the plaintiff in error moved for a new trial, on several grounds, as set forth in the statement. The first and second grounds will be considered together, because the correctness of the verdict must be determined by applying- the law to the facts in evidence.

There can be no doubt that the deceased came to his death by Avounds inflicted by the plaintiff in error, Avith intent to kill him. The justification rests upon the alleged necessity imposed upon the plaintiff in error, to kill the deceased in order to save his OAvn life. If this necessity appear from the evidence, the verdict should have been set aside and a new trial ordered. But if, on the contrary, it appear that the slayer Avas in no imminent danger when he inflicted the mortal wound; that the deceased had either made no assault upon him or had ceased from it, and was retiring, it would be difficult to make out a case of self-defense.

This defense rests mainly upon the fact that deceased fired upon and wounded the plaintiff in error, with a shot-gun. It is not very apparent from the evidence whether this shot was made whilst the plaintiff in.error was in the act of drawing his pistol or before he attempted so to do. But in the doubt attaching to this point, justice to the accused may entitle him to the assumption that deceased leveled his gun and was in the act of firing, before plaintiff in error drew, or attempted to draw, his pistol. This places the deceased in the position of assailant. But does it make out the defense ? The evidence does not show either that the deceased continued th<$ assault or that he had the means of continuing a dangerous assault.

The witnesses say he had a shot-gun, and do not say it was a double-barrel gun, or that deceased had any other weapon, or was reloading, or was continuing to advance upon the accused. On the contrary, two witnesses say distinctly, that the accused shot four five times at deceased, inflicting as many wounds, and that while he was so shooting; deceased was walking away from him. The testimony is, that deceased had only a single-barrelled shot-gun, and after having delivered his fire, was powerless in the presence of a foe armed with a revolver. The jury were abundantly justified in drawing this inference from the evidence; and then the question would arise, did the accused inflict those four or five wounds upon the deceased under the excitement of reasonable fears for his personal safety, or was he prompted by a sudden, violent impulse of passion occasioned by the assault then done and ended. The verdict evinces that they arrived at the latter conclusion, and in view of the seventh, thirteenth and fifteenth sections of th.e fourth division of the Penal Code, we perceive in their finding no error of law or of fact. We sustain this verdict upon this ground, that even immediately after an assault endangering life or limb, the killing of the assailant by the assailed will be manslaughter, if it be apparent that the assault, and with it the personal danger of the assailed, had ended, and that the mortal wound was inflicted as the assailant had ceased from the attempt and was retreating.

The statistics of crime in Georgia show that the lower grades of felonious homicide are of much more frequent occurrence than the higher. This may result from the inclination of jurors to acquit entirely, where the evidence does not justify a conviction for murder.

In all cases where a just discrimination is exercised by juries, Courts should scrupulously avoid interference with their verdict.

The next ground of exception is, that the Court erred in admitting common repute, as evidence of the maternity, and consequently, social position, of the accused. "We have searched the record in vain for evidence that objection was made to the introduction of this testimony when offered, or at any time anterior to the rendition of the verdict. If, therefore, it were illegal evid^pce, of which we are by no means satisfied, we could not entertain the exception.

The remaining exception is to the charge of the Court, regarding the degree of certainty as to the social caste of the accused,' necessary to a conviction. In this charge, we understand the Court to have discriminated between the question of guilt or innocence, and the question of social caste, and to have intimated that a less degree of certainty was requisite upon the latter than upon the former question, and he concludes with these words: “If you are satisfied from the evidence that he is a free person of color, that is sufficient on that point.” This is equivalent to saying, unless so satisfied, the evidence is insufficient on that point; and in all this we see no error. Our conclusion is, that the motion for a new trial was properly overruled.

Let the judgment be affirmed.  