
    *Robert Farrow, plaintiff in error, vs. The State of Georgia, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Criminal Law — Verdict.—The verdict was not contrary to evidence, the case being, under the evidence, one where manslaughter was a very proper verdict.
    2. Same — Instructions.—Whatever may be the law, in a proper case, as to how far a man must retreat to avoid an assault not a felony, there was nothing to show that defendant had retreated at all, and for this reason, neither the refusal to charge, as asked, nor the charge as given, was such error, if error at all, as to justify a new trial. He was not entitled to the charge as asked for, and the charge as given did him no harm, but rather good service; it presented a hypothesis in his favor, based on his retreat, of which there was no evidence.
    ■3. Same — Open and Close — Exceptions.—The introduction of the prisoner’s statement is not such an introducing of testimony as deprives the prisoner of the conclusion, if he introduces no testimony, but we are of the opinion that the statement of the judge, to the effect that, if it was introduced, he would, when the time for the argument came, hold the prisoner not entitled to the conclusion, was not, under the statute, a decision so as to authorize a bill of exceptions.
    4. Same — Indictment.—-The allegation that the person killed was Robert Germany, a person of color, was sustained by proof that Robert Germany was the name of the deceased,'the words person of color being unnecessary and surplusage.
    5. Same — New Trial — Newly Discovered Evidence. — The newly discovered evidence was not shown to be, in fact, in existence, by the affidavit of the witness by whom it could.be proved, or any excuse given for its non-production.
    Criminal law. Indictment. New trial. Practice. Evidence. Bill of exceptions. Newly discovered evidence. Before Judge Wright. Troup Superior Court. November Term, 1871.
    Robert Farrow was placed upon trial for the offense of murder, alleged to have been committed upon the person of Reuben Germany, a person of color. The defendant pleaded not guilty.
    The evidence made the following case: On a Tuesday night, during the latter portion of the month of October, 1871, Wily Cunningham and the deceased were out hunting. Columbus Cunningham, the brother of Wily, and defendant met them in the road. Columbus became involved in *with deceased; Wily led the deceased off from his brother, when deceased jerked away, struck Wily, jumped back, drew his knife, rushed at Wily and closed with him; Columbus then seized deceased, when defendant took Columbus off of deceased’s back, and threw him on one side of the road. Defendant said to deceased, “God damn you, you have cut me.” Deceased shut up his knife and said, “If I did, I did not aim to do it.” Defendant replied, “God damn you,' you have cut me,” pulled out his knife, rushed upon deceased, struck him in the breast and said, “God damn you, I will shoot you.” He did not shoot, but struck deceased three times in the breast. When he stuck him the third time, deceased closed with him and ran him back, bending him over the fence; the defendant then commenced cutting deceased; deceased threw defendant out into the road, got up off of him, and said that defendant had cut him all to pieces; Wily told him to come and go home; he said he was not able to go, and asked Wily to come and unbutton his pants; deceased laid down and said, “God bless the man, I love him for all he has served me so.” He died in fifteen or twenty minutes; deceased had been drinking. One witness testified that some three weeks before the homicide, defendant said to him that deceased had made him mad; witness asked what about ? Defendant answered that he heard deceased tell a lady to slight him, defendant, for him, deceased, and that the first time he crossed his path, he intended to put a ball in him. The defendant was somewhat stouter than deceased.
    There were some few discrepancies in the immaterial portions of the testimony, but the case as herein stated, is all that is necessary to a clear understanding.of the decision of the court.
    When the evidence was closed, the defendant proceeded to make his statement to the jury, as allowed by statute in such case made and provided. Counsel for the State objected to its reception, save as such testimony, as, if received, would debar counsel for defendant from opening and concluding the argument to the jury, which objection was sustained; it was *further ruled by the Court that if defendant should make his statement, then his counsel would be precluded the
    privilege of opening and concluding the argument to the jury.
    To which ruling counsel for defendant excepted. Defendant requested the Court, in writing, to charge the jury “that if Reuben Germany, the deceased, was described in the indictment as a person of color, it was such an allegation as must be strictly proven as alleged, and that no presumption that such was the fact could, outside of the evidence, be entertained by the jury,” which charge the Court refused to give, and defendant excepted.
    Defendant, in writing-, requested the Court to charge, “that if the jury believed that during a sudden rencounter with the deceased, the defendant fled as far as he consistently could, by reason of a fence and other impediments, and then, under a reasonable fear of great bodily harm, slew his assailant, that it was justifiable homicide,” which charge the Court refused to give, but on the contrary, charged the jury, “that under any circumstances of retreat or avoidance, if the defendant was under the fear of a reasonable man that a felony was about to be perpetrated upon him by his assailant, then the killing would be justifiable homicide, but that any circumstances of retreat or avoidance under reasonable fear of any less bodily hurt, could only reduce the offense to voluntary manslaughter,” to which charge defendant, by his counsel, excepted.
    The jury returned a verdict in these words: “We, the jury, find the defendant guilty of voluntary manslaughter.” Whereupon counsel for defendant moved for a new trial in the said cause, upon the following grounds, to-wit:
    1st. Because the Court erred in ruling that the statement of the prisoner at the bar is such testimony as to preclude counsel for defendant from making the concluding argument, when such defendant introduces no other evidence or testimony.
    2d. Because the verdict was contrary to the evidence and principles of justice.
    *3d. Because the verdict was strongly and decidedly against the weight of the evidence.
    4th. Because, since the trial of the said cause and the verdict rendered, new and material evidence has been discovered by the defendant, to-wit: that of Columbus Cunningham, of said county, who informed this defendant that he heard Reuben Germany, the deceased, just before the fatal rencounter, curse and threaten the defendant, using toward said defendant, Robert Farrow, words and threats going to show an intention to take said defendant’s life.
    In support of the last ground was attached the affidavit of the defendant. •
    The motion was overruled, and counsel for defendant excepted upon each of the grounds aforesaid.
    Cox & Turner, for plaintiff in error.
    
      1. (a.) See Irw. Rev. Code, 4551, 3798; Stat. 1868, p. 24. When old statute is repealed by new: 1 Black. Com., 89; Irvin et al. vs. Moore et al., 15 Ga. R., 361; Elrod vs. Gilliland, H. & Co., 27 Ga. R., 467. General rule as to construction of statutes: 1 Bl. Com., 61; Irw. Rev. Code, section' 4. As to technical terms: 1 Bl. Com., 59. Definition of testimony: Bouv. Law Die., vol. 2, 4th ed., 589; see State vs. Williams, 3 Ga. R., 460; 18 Johns., 218.
    
      (b.) See 3 Green. Ev., 22; Wharton’s Amer. Crim. Eaw, vol. 3, 597.
    (c.) See 4 Bl. Com., 185; Park. Cr. R., vol. 1, 164; Cons, of Ga., Art. XI., sec. 3; Code of Ga., 4268.
    (d.) See definition of crime: Irw. Rev. Code, 4227, 4228.
    
      (e.) All the acts of prisoner, up to the time he struck deceased, clearly show that his intention was to quell difficulty.
    2. A state of mind once proven to exist is presumed to continue until rebutted by proof: Irw. Rev. Code, 3701.
    3. Prisoner drawing knife and striking deceased in breast is not such proof, because the act may be accounted for upon a reasonable hypothesis, consistent with his innocence, to which construction he is entitled: 3 Green, on Ev., 29.
    34 *4. The facts are: Deceased was drunk; deceased had.
    attempted to cut all present; deceased stabbed prisoner whilst he, prisoner, was in the act of defending himself; all present had persuaded deceased to stop the fuss.
    5. First hypothesis: Prisoner seeing all appeals to the reason of deceased fail, attempted, by threats, to overawe him, and thereby prevent further acts of violence on his part.
    6. This hypothesis is reasonable. Prisoner did not intend to execute his threats, for there is no evidence that he had a pistol; prisoner did not intend to cut deceased, because he did not open his knife; prisoner did not intend to inflict upon deceased the least bodily hurt, for, having ample opportunity, he did not strike him as though he were fighting, and prisoner retreated when he was assaulted.
    7. Second hypothesis: Prisoner made the threat to protect himself from personal danger, which he had a right to do: Whar Amer. Crim. Eaw, sec. 1026.
    8. . risoner had a right to deem the threat necessary, because all other means to stop deceased’s violent assaults had failed: See evidence, generally, of Wm. Jackson and Wiley Cunningham.
    9. Prisoner could not run, because he was badly wounded- in the knee; (was before the jury on crutches;) prisoner had reason to fear another stab, because deceased had cut at every one in his reach, and did not see deceased put up his knife, because it was dark.
    10. The killing was justifiable, under common law doctrine of chance-medley: 4 Bl. Com., 184.
    11. Prisoner, when assaulted, retreated as far as he could; he retreated because, being the stronger man of the two, deceased could not.have forced him back against his will.
    
      12. 'In self-defense, under section 4264 of Irwin’s Revised Code.
    13. The facts are: Deceased had stabbed him once; deceased’s every act showed a reckless inconsideration of human life; deceased’s assault upon prisoner was violent and continuous; ’"deceased threw prisoner in such a position as deprived him of all means of defense, except the one used.
    14. See Irwin’s Revised Code, 3665. As to importance of this evidence, see Monroe vs. The State, 5 Ga. R., 86, head note, 3; see, also, opinion of Dumpkin, Judge, in Monroe vs. The State, 5 Ga. R., 136, 138.
    Mabry, TooeE & Son, for the State.
    
      
      Exception — Decision of Court. — See the principal case cited in Barker v. Blount, 63 Ga. 427; Grant v. State, 97 Ga. 791, 25 S. E. Rep. 399; Wilson v. Danforth, 47 Ga. 680.
      Right of Conclusion. — See the principal case cited in note to Underwood v. State, 88 Ga. 53, 13 S. E. Rep. 856.
    
   McCay, Judge.

Without doubt, this was an unfortunate affair — an instance of the sad evil of intemperance and of the consequences of allowing one’s passions to get the control of the respect for human life and of human and divine law. That the prisoner had cause for anger is unquestionable, and the circumstances do, in our judgment, excuse him from the guilt of murder, yet he has taken a human life without any of the justifications allowed by law. At the time he inflicted the fatal blow, he had no reason to fear any harm to himself from the deceased. From all the facts, one cannot but think that even the cuts he got in the struggle between the deceased and the person with whom he was quarreling, were accidental. At any rate, the evidence is conclusive, that as soon as the deceased knew he had injured the prisoner he expressed his regret, and put up his knife. The prisoner had no reason to suppose the deceased intended to interfere with him any longer. In this state of things, impelled by his own fierce passions, he draws his knife, rushes upon the deceased and strikes him several times on the breast with his open knife in his hand. The clinching of him by deceased was only the natural act of a man, doing the best he could against a violent assault, and there was nothing in this to justify the killing. The hot passion, induced by his wounds, is the only excuse that in our judgment exists, and the jury has given him the benefit of this by the verdict of manslaughter. We cannot say, from the evidence, that this verdict is illegal; there is some evidence even, that the fatal wound was in the breast, and that this *was inflicted before deceased clinched the prisoner, and if the jury believed this he gets off pretty well by a verdict of manslaughter.

It is not necessary for us to decide the question so elaborately argued, as to how far one must retreat to be justified in killing one who is manifestly endeavoring by violence or surprise to commit upon him a wrong less than a felony. The prisoner, in this case, did not retreat at all; there is absolutely no evidence, from which it is possible to infer, that he retreated at all. In the immediate struggle, which ended in the death of deceased, the prisoner was the aggressor, and the evidence shows no act of his indicating any disposition to get away. The charge asked for was not, therefore, pertinent to the evidence. And the charge as given,' whether right or not, did'the-prisoner no harm, as it presented a hypothesis in his favor which the evidence did not justify.

The deceased is described by his' name and by his color: The name is sufficient. It is laid down by Ch'itty, that if the occupation be stated it is surplusage, and need not be proven: 1 Chitty’s Criminal Law, 211. And this is a general rule as to matters of description. The case in 16 Arkansas Reports, of the killing of the Wyandotte Indian, was right enough, as that was all the description given. It would be too burdensome to require every particular of description to be proven. It is enough if a sufficiency is proven to identify. The name does that; the color is only another mode of identification. All colors of men stand now on equal footing before the law.

It is only a very loose sense that the prisoner’s- statement is evidence. Ordinarily it can have only the force which-its consistency, naturalness and inherent probability gives it. It is a very poor privilege if it has to be bartered for the conclusion, and we do not think it was the intent of the Legislature to make its introduction have that ’effect. It was so easy and so natural to say so, that the absence of a provision ’is an argument against it. Criminal laws are to be construed favorably to the accused and no right is to be construed away. It must be clear that the law takes it away. We do not, therefore, *agree with the circuit judge in the opinion he expressed. But we do not think this a ground for a new trial. The facts stated do not constitute a decision. Lie did not rule out the statement, nor did he refuse the right to conclude. All that can be said is that he announced that under certain circumstances he would deny the right to conclude. Lie did not in this case deny it, because the party, in anticipation of what the judge would, decide, took such a course as to obviate the anticipated decision. It would be dangerous to treat such an announcement as a de-. cisión. A judge’s known opinions are no reason why parties’ should not call upon him to decide. His decision in one case is, no justification for a party who has a similar case, not to demand a new decision. The true course was to put in the statement, and when the time came for the argument, to evoke the decision of the Court.

4. The rule is well established that to get a new trial, on the ground of newly discovered testimony, the affidavit of the witness must be produced. Something more at any rate must appear than the affidavit of the party making the motion.- Ordinarily, and perhaps universally, there must be the affidavit of the. witness, or of some one who knows what the witness can and will testify to.

Judgment affirmed.  