STONE, J.
There is very great want of order, method, and completeness in the presentation of the evidence in this record. The distances and relative position of the places mentioned are, as a rule, not so explained as that we can be profited by their consideration. This testimony was, no doubt, understood in the examination before the circuit judge; for the trial was had where the homicide was committed, before a judge who is supposed to be familiar with the.localities described. Hence, he had advantages which, in the state of this record, we can not enjoy.
“All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof' is evident, or the presumption great.” — Declaration of Rights, §17. See, also, Code of 1876, §4842. The rules for admitting to bail in capital cases, under constitutions and statutes similar to ours, have been very differently declared in different States. In Wray, ex parte, 30 Miss. 4673, the majority of the court, pronouncing on the constituents of murder, asserted principles which We emphatically disapprove. We can not too strongly express our condemnation of the popular fallacy, to use no stronger phrase, therein unfortunately countenanced, which we believe is annually rushing scores, if not hundreds of our citizens into eternity, red with their own blood causelessly shed. Until courts and juries learn to place a proper estimate on the sacredness and inestimable value of human life ; learn that life is not to be taken to avenge an insult, even though gross; learn that feloneous homicide, even willful and deliberate murder, may be committed during a personal, nay, mutual rencontre; until j uries learn that the crime of murder is not expunged from our statute book, nor retained only for the friendless or humble, we may expect the carnival of the manslayer to be prolonged, if not intensified. We have been led to these strong expressions by the extraordinary rulings found in the case of Ex parte TFray, supra. We are glad to know that one of the justices — Judge Handy- — spoke out in no ambiguous terms in condemnation of the pernicious doctrines of the majority opinion. He asserted the true principles of the law that have come to us sanctified by the wisdom and philanthropy of centuries : the law that takes life regretfully, but with unflinching purpose to protect and preserve human life, by punishing the murderer. “If a party enters into a contest dangerously armed, and fights under an undue advantage, though mutual blows pass, it is not manslaughter, but murder,” if he slay his adversary pursuant to a previously formed design, either special or general, to use his weapon in an emergency. None but a wicked and depraved heart will de[275]*275liberately determine on tbe death of an assailant, unless it becomes necessary to do so in defense of bis own life, or to avert impending grievous bodily barm, as tbe law defines that pbrase. —See Judge v. The State, at tbe present term. See, also, Rex v. Thomas, 7 Car. & Payne, 817; State v. Craton, 6 Ireland, 164. And we dissent with equal emphasis from tbe rule for admitting to bail laid down in Moore v. The State, 36 Miss. 137, and reasserted in Beall v. The State, 39 Miss. 721.
What we have said above is intended to have a general application, and is prompted by a strong conviction that it is our duty to place on record our unqualified disapprobation of tbe doctrine declared in Wray, ex parte. So far as our observation has extended, that case stands alone in tbe principles it enunciates. Tbe definition and constituents of murder have come to us from tbe common law, that grand, colossal system which, in the purity and elevation of its morals, tbe maintenance of right and repression of crime, tbe equal protection of all in tbe enjoyment of life, liberty, and property, challenges tbe admiration of tbe world. Our statutes have classified murders, but in no instance have they reduced a common law murder to a lesser offense. — See Code of 1876, §4295. Every murder at common law is murder under our statutes. If it now requires a higher degree of criminality to secure a conviction of murder than it did at common law, tbe fault is not in tbe law ; it is in its lax and falsely merciful administration.
Tbe foregoing reflections are intended to have no application to tbe present case, farther than tbe principles asserted may bear on tbe facts found by tbe jury. Tbe cases, Rex v. Thomas and State v. Craton, supra, precisely define our views.
In Com. v. Keeper of Prison, 2 Ashm. 227, 234, a case of primary trial on application for bail, tbe court said, “ It is difficult to lay down any precise rule for judicial government in such a case ; but it would seem a safe one to refuse bail in a case of malicious homicide, where tbe judge would sustain a capital conviction, pronounced by a jury, on evidence of guilt, such as that exhibited on tbe application for bail; and to allow bail, where tbe prosecutor’s evidence was of less efficacy.” This case was affirmed and acted on in the case of tbe State v. Simmons, 19 Ohio, 141. In ex parte McAnally, 53 Ala. 495, this court approved tbe foregoing as tbe correct rule in tbe primary court, and added : “ When tbe question is presented to a revisory court, much is due to tbe judgment of tbe primary tribunal. Tbe witnesses are personally before it, and tbe examination is usually bad near tbe scene of tbe alleged offense, and in tbe midst of the circumstances [276]*276attending tbe transaction. In all investigations of criminal accusations, much depends on the manner in which the witnesses testify, the feeling of partiality or prejudice they may manifest, and their general demeanor. There the primary court has the opportunity of observing, and it should be clear that it has erred in its judgment, or a revisory court should abstain from interference.” In two cases since that time — Ex parte Weaver, at December term, 1876, and Ex parte Alien, September term, 1877 — we have followed the rule laid down in McAnally’s case. In each of the cases last mentioned, the question arose on the weighing of evidence. Under one phase of the testimony, the presumption was great that the defendant was guilty of murder in the first degree. Under the other, Weaver was not guilty of any offense, and Allen could not be guilty of anything higher than manslaughter. The judge below denied bail to each, and we refused to disturb his ruling, on the principles above declared. It is our purpose to adhere to these rules, although we are aware they are somewhat in conflict with other decisions. — Ex parte Bryant, 34 Ala. 270; Ex parte Heffren, 27 Ind. 92; McCoy v. State, 25 Texas, 33; Ex parte Miller, 41 Texas, 213.
In the present case the deceased came to nis death by an incised wound, inflicted with a knife. The testimony of two witnesses is that the incision extended inwardly from the surface from 2| to 2J inches. It was a mortal wound, and that it was inflicted by the defendant does not appear to be controverted. Wre think a knife, capable of making a wound 2¿ inches deep, must be classed as a deadly instrument. The defendant sought the deceased at his place of business, and accosted him there. The tendency of the testimony is that he then held an open knife in his hand. Eew words preceded the blows, and the fatal stab was given. An explanation is offered why the defendant had an open knife in his hand.
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STONE, J.
There is very great want of order, method, and completeness in the presentation of the evidence in this record. The distances and relative position of the places mentioned are, as a rule, not so explained as that we can be profited by their consideration. This testimony was, no doubt, understood in the examination before the circuit judge; for the trial was had where the homicide was committed, before a judge who is supposed to be familiar with the.localities described. Hence, he had advantages which, in the state of this record, we can not enjoy.
“All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof' is evident, or the presumption great.” — Declaration of Rights, §17. See, also, Code of 1876, §4842. The rules for admitting to bail in capital cases, under constitutions and statutes similar to ours, have been very differently declared in different States. In Wray, ex parte, 30 Miss. 4673, the majority of the court, pronouncing on the constituents of murder, asserted principles which We emphatically disapprove. We can not too strongly express our condemnation of the popular fallacy, to use no stronger phrase, therein unfortunately countenanced, which we believe is annually rushing scores, if not hundreds of our citizens into eternity, red with their own blood causelessly shed. Until courts and juries learn to place a proper estimate on the sacredness and inestimable value of human life ; learn that life is not to be taken to avenge an insult, even though gross; learn that feloneous homicide, even willful and deliberate murder, may be committed during a personal, nay, mutual rencontre; until j uries learn that the crime of murder is not expunged from our statute book, nor retained only for the friendless or humble, we may expect the carnival of the manslayer to be prolonged, if not intensified. We have been led to these strong expressions by the extraordinary rulings found in the case of Ex parte TFray, supra. We are glad to know that one of the justices — Judge Handy- — spoke out in no ambiguous terms in condemnation of the pernicious doctrines of the majority opinion. He asserted the true principles of the law that have come to us sanctified by the wisdom and philanthropy of centuries : the law that takes life regretfully, but with unflinching purpose to protect and preserve human life, by punishing the murderer. “If a party enters into a contest dangerously armed, and fights under an undue advantage, though mutual blows pass, it is not manslaughter, but murder,” if he slay his adversary pursuant to a previously formed design, either special or general, to use his weapon in an emergency. None but a wicked and depraved heart will de[275]*275liberately determine on tbe death of an assailant, unless it becomes necessary to do so in defense of bis own life, or to avert impending grievous bodily barm, as tbe law defines that pbrase. —See Judge v. The State, at tbe present term. See, also, Rex v. Thomas, 7 Car. & Payne, 817; State v. Craton, 6 Ireland, 164. And we dissent with equal emphasis from tbe rule for admitting to bail laid down in Moore v. The State, 36 Miss. 137, and reasserted in Beall v. The State, 39 Miss. 721.
What we have said above is intended to have a general application, and is prompted by a strong conviction that it is our duty to place on record our unqualified disapprobation of tbe doctrine declared in Wray, ex parte. So far as our observation has extended, that case stands alone in tbe principles it enunciates. Tbe definition and constituents of murder have come to us from tbe common law, that grand, colossal system which, in the purity and elevation of its morals, tbe maintenance of right and repression of crime, tbe equal protection of all in tbe enjoyment of life, liberty, and property, challenges tbe admiration of tbe world. Our statutes have classified murders, but in no instance have they reduced a common law murder to a lesser offense. — See Code of 1876, §4295. Every murder at common law is murder under our statutes. If it now requires a higher degree of criminality to secure a conviction of murder than it did at common law, tbe fault is not in tbe law ; it is in its lax and falsely merciful administration.
Tbe foregoing reflections are intended to have no application to tbe present case, farther than tbe principles asserted may bear on tbe facts found by tbe jury. Tbe cases, Rex v. Thomas and State v. Craton, supra, precisely define our views.
In Com. v. Keeper of Prison, 2 Ashm. 227, 234, a case of primary trial on application for bail, tbe court said, “ It is difficult to lay down any precise rule for judicial government in such a case ; but it would seem a safe one to refuse bail in a case of malicious homicide, where tbe judge would sustain a capital conviction, pronounced by a jury, on evidence of guilt, such as that exhibited on tbe application for bail; and to allow bail, where tbe prosecutor’s evidence was of less efficacy.” This case was affirmed and acted on in the case of tbe State v. Simmons, 19 Ohio, 141. In ex parte McAnally, 53 Ala. 495, this court approved tbe foregoing as tbe correct rule in tbe primary court, and added : “ When tbe question is presented to a revisory court, much is due to tbe judgment of tbe primary tribunal. Tbe witnesses are personally before it, and tbe examination is usually bad near tbe scene of tbe alleged offense, and in tbe midst of the circumstances [276]*276attending tbe transaction. In all investigations of criminal accusations, much depends on the manner in which the witnesses testify, the feeling of partiality or prejudice they may manifest, and their general demeanor. There the primary court has the opportunity of observing, and it should be clear that it has erred in its judgment, or a revisory court should abstain from interference.” In two cases since that time — Ex parte Weaver, at December term, 1876, and Ex parte Alien, September term, 1877 — we have followed the rule laid down in McAnally’s case. In each of the cases last mentioned, the question arose on the weighing of evidence. Under one phase of the testimony, the presumption was great that the defendant was guilty of murder in the first degree. Under the other, Weaver was not guilty of any offense, and Allen could not be guilty of anything higher than manslaughter. The judge below denied bail to each, and we refused to disturb his ruling, on the principles above declared. It is our purpose to adhere to these rules, although we are aware they are somewhat in conflict with other decisions. — Ex parte Bryant, 34 Ala. 270; Ex parte Heffren, 27 Ind. 92; McCoy v. State, 25 Texas, 33; Ex parte Miller, 41 Texas, 213.
In the present case the deceased came to nis death by an incised wound, inflicted with a knife. The testimony of two witnesses is that the incision extended inwardly from the surface from 2| to 2J inches. It was a mortal wound, and that it was inflicted by the defendant does not appear to be controverted. Wre think a knife, capable of making a wound 2¿ inches deep, must be classed as a deadly instrument. The defendant sought the deceased at his place of business, and accosted him there. The tendency of the testimony is that he then held an open knife in his hand. Eew words preceded the blows, and the fatal stab was given. An explanation is offered why the defendant had an open knife in his hand. If the defendant really sought the interview for the purpose of an explanation, and with no intention of using the knife, should a difficulty ensue, and the use of the knife was the sudden, unpremeditated result of passion, engendered by the blow, then he was not guilty of murder. On the other hand, if he had or held toe knife for the purpose of using it, should a conflict ensue ; and if, pursuant to such purpose, he did fatally stab the deceased, at a time when there was no apparent, pending present danger to his own life, or of that class of injury which the law defines as grievous bodily harm, then he was guilty of murder in the first degree. In determining this pivotal issue in the cause, all the attendant facts should be weighed. The state of feelings of each party, in view of the accusation then recently [277]*277made ; tbe fact that tbe interview was of tbe prisoner’s own seeking; tbe manner of bis approach and address to tbe deceased ; tbe fact, if it be a fact, that be bad an open knife in bis band; tbe manner of bis bolding it, and tbe explanation of bis having tbe open knife, offered in bis defense ; bis words, voice and manner when be approached, and when be accosted Powell; and whether these, and bis language and conduct during tbe altercation, indicated pacific intentions, or tbe opposite — these, and all other circumstances connected with the affray, it was proper for tbe circuit judge to scan. Under one construction of the evidence, the offense was not bailable ; under tbe other, it was. Tbe primary court bad much better opportunities of construing these facts and circumstances than we can have, and we will not disturb its ruling.
We do not think tbe declarations of deceased, sought to be proved as dying declarations, were sufficiently shown to have been made under a sense of impending death, to justify their admission in evidence. It is not shown that the expectation of recovery was entirely destroyed.
Neither do we think it was permissible to prove as a fact tbe alleged insult to tbe little girl. That she bad made such charge, and that Powell and the defendant each knew she bad made it, would have been legal evidence. It sheds light on tbe conduct of each of tbe parties.
Writ of habeas corpus refused.