By the Court
Lumpkin, J.
delivering the opinion.
The defendant in this case was convicted of murder, and having been refused a new trial in the Court below, he has prosecuted a writ of error to obtain one in,this Court.
Some of the grounds occupied in the rule for a new trial, have been abandoned on the argument here; and as to some of the rest, we deem it unnecessary to notice. It is but a repetition of the same objection. We' propose to consider the material questions only.
[1.] It is in evidence that after the homicide was committed and Golden arrested, he made his escape, and was found crouched under a fence, in the immediate neighborhood. [531]*531And this flight, it is contended, on the part of the State, indicated a consciousness of guilt. To rebut this presumption, it was proposed by the prisoner’s counsel to prove that a violent assault was made upon the accused, by one of the party, before he fled. And this testimony was rejected.
The point in this case is not very material any way; but as the State deemed it of sufficient importance to prove the escape, it would seem proper to allow the accused to account for it as he proposed to do; and to show that it originated in fear of injury from the surviving companions of the deceased, and not from any consciousness of guilt. At any rate, it was a proper matter to be submitted to the jury.
[2.] As to the complaint against the use of the word “ apprehend,” we see nothing in that. “ My duty,” said the Judge, “is to give you in charge the rule of law, by which I apprehend' — that is, understand, conceive, believe — “you are to be governed in the decision of this case.”
[3.] The next part of the charge we think is objectionable. While the learned Judge admits that it is the right of the jury to differ from the Court in its construction of the law, yet, he says to them, it should not be on slight or trivial grounds; bu tthat they should be clearly satisfied that the Court'was wrong, before they did differ.
Why, we respectfully submit, make an issue of this sort, between the Court and the jury ? Why compel them to find that his Honor, for whom, as a man and a magistrate, the jury feel, in common with the whole country, the greatest respect, was clearly wrong about the law. The verdict of the jury should embody their opinion of the law, as well as of the lacts. And they are not required to be “clearly satisfied” that the Judge is wrong. But if they entertain doubts as to the law, the prisoner is just as much entitled to the benefits of those doubts, as if they applied to the facts. It is impossible for this Court to be more explicit than it has been upon this point. In the case of Keener vs. The State, (18 Ga. Rep. 194,) the rule upon this subject is elaborated with [532]*532great care. The Court, after submitting to the jury, its view of the law — a delicate duty, by the way, under the penal code — should simply say to them: “But, gentlemen, it is made your duty, under the law, to pronounce upon the law, as well as the facts of the case;” and there leave the matter.
[4.] We are not clear that the Court intended, to repudiate the proposition, that one may kill another against whom he has malice, and yet not be guilty of murder. The billof exceptions, however, is scarcely susceptible of any other meaning. If he did, it was error. Whenever the circumstances of the killing would not amount to murder, the proof even of express malice will not make it so. One may harbor the most intense hatred toward another; he may court an opportunity to take his life; may rejoice while he is imbruing his hands in his heart’s blood; and yet, if, to save his own life, the facts showed that he was fully justified in slaying his adversary, his malice shall not be taken into the account. This principle is too plain to need amplification.
[5.] After charging as to the effect of intoxication upon the crime, the Court added, “but drunk or sober, the killing of a human being, in the sudden heat of passion, without malice express or implied, will notamount to voluntary manslaughter, unless it appear that the deceased had made some actual assault upon the person of the accused, or that there was an attempt by the deceased to commit a serious personal injury on the accused.”
We cannot concur in this charge for several reasons. It asserts, as it stands, what cannot be legally true; namely, that there may be murder without malice. The learned Judge, we are quite sure, did not intend to assert such a doctrine. Again, itmaintains that unless the deceased made some actual assault upon the defendant, cr intended to inflict a serious personal injury upon him, the homicide cannot be reduced to manslaughter. In the case of Stokes vs. The State, (18 Ga. Rep. 17,) this Court endeavored to establish, and we think successfully, that this proposition is not true. And [533]*533it may not be in the present case, even putting the most favorable construction for the State upon the testimony. Suppose no assault was made by Jordan when he seized the tumbler; still, looking at all that transpired that day, if the effect was to excite beyond control the passion of the prisoner, and yielding to the momentary impulse, surrounded as he was by his enemies, who had followed him to his place of retreat, he killed Jordan, the law, in mercy to his weakness, and in view of the provocation given, might well hold that he shot in sudden heat, and not in the spirit of revenge.
[6.] As to the effect of drunkenness upon crime, we are not prepared to say that the view taken of it by the Judge, was not quite as favorable as the defendant had any right to ask. That drunkenness cannot excuse crime, the code, as well as the common law, is quite explicit. The modern decisions would seem to go to the length of holding, that the drunkenness of the prisoner may be considered on the question, whether the prisoner was excited by passion, or acted from malice. (32 Engl. Com. L. Rep. 751; 4 Humph. Rep. 141.) The Court gave to the prisoner the benefit of this doctrine; and we are not inclined to interfere with the qualification annexed to it, to-wit: that to entitle the accused to the benefit of this rule, he should strike with a weapon which he casually held or obtained, and not use a pistol or bowie knife, deliberately procured with a view to a rencontre.
[7.] As to all those requests which were based upon the idea, that the circumstances which attended the killing, were sufficient to excite the fears of a drunkard, or a coward, or even of Mr. Golden, the law makes no such discrimination. They must be such as to excite the fears of a reasonable man.
As to the competency'of the juror, Slaughter, he will not be sworn again to try this cause; and having made so many rulings upon this subject, each depending like this, upon the special facts of the case, we deem it unnecessary to reiterate our opinion upon this vexatious and oft-recurring topic. The conduct of this juror in lying, as he confesses he did, to [534]*534avoid the performance of a public duty, is reprehensible in the highest degree; and all similar behavior in future, might well provoke the punitory power of the Court.
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By the Court
Lumpkin, J.
delivering the opinion.
The defendant in this case was convicted of murder, and having been refused a new trial in the Court below, he has prosecuted a writ of error to obtain one in,this Court.
Some of the grounds occupied in the rule for a new trial, have been abandoned on the argument here; and as to some of the rest, we deem it unnecessary to notice. It is but a repetition of the same objection. We' propose to consider the material questions only.
[1.] It is in evidence that after the homicide was committed and Golden arrested, he made his escape, and was found crouched under a fence, in the immediate neighborhood. [531]*531And this flight, it is contended, on the part of the State, indicated a consciousness of guilt. To rebut this presumption, it was proposed by the prisoner’s counsel to prove that a violent assault was made upon the accused, by one of the party, before he fled. And this testimony was rejected.
The point in this case is not very material any way; but as the State deemed it of sufficient importance to prove the escape, it would seem proper to allow the accused to account for it as he proposed to do; and to show that it originated in fear of injury from the surviving companions of the deceased, and not from any consciousness of guilt. At any rate, it was a proper matter to be submitted to the jury.
[2.] As to the complaint against the use of the word “ apprehend,” we see nothing in that. “ My duty,” said the Judge, “is to give you in charge the rule of law, by which I apprehend' — that is, understand, conceive, believe — “you are to be governed in the decision of this case.”
[3.] The next part of the charge we think is objectionable. While the learned Judge admits that it is the right of the jury to differ from the Court in its construction of the law, yet, he says to them, it should not be on slight or trivial grounds; bu tthat they should be clearly satisfied that the Court'was wrong, before they did differ.
Why, we respectfully submit, make an issue of this sort, between the Court and the jury ? Why compel them to find that his Honor, for whom, as a man and a magistrate, the jury feel, in common with the whole country, the greatest respect, was clearly wrong about the law. The verdict of the jury should embody their opinion of the law, as well as of the lacts. And they are not required to be “clearly satisfied” that the Judge is wrong. But if they entertain doubts as to the law, the prisoner is just as much entitled to the benefits of those doubts, as if they applied to the facts. It is impossible for this Court to be more explicit than it has been upon this point. In the case of Keener vs. The State, (18 Ga. Rep. 194,) the rule upon this subject is elaborated with [532]*532great care. The Court, after submitting to the jury, its view of the law — a delicate duty, by the way, under the penal code — should simply say to them: “But, gentlemen, it is made your duty, under the law, to pronounce upon the law, as well as the facts of the case;” and there leave the matter.
[4.] We are not clear that the Court intended, to repudiate the proposition, that one may kill another against whom he has malice, and yet not be guilty of murder. The billof exceptions, however, is scarcely susceptible of any other meaning. If he did, it was error. Whenever the circumstances of the killing would not amount to murder, the proof even of express malice will not make it so. One may harbor the most intense hatred toward another; he may court an opportunity to take his life; may rejoice while he is imbruing his hands in his heart’s blood; and yet, if, to save his own life, the facts showed that he was fully justified in slaying his adversary, his malice shall not be taken into the account. This principle is too plain to need amplification.
[5.] After charging as to the effect of intoxication upon the crime, the Court added, “but drunk or sober, the killing of a human being, in the sudden heat of passion, without malice express or implied, will notamount to voluntary manslaughter, unless it appear that the deceased had made some actual assault upon the person of the accused, or that there was an attempt by the deceased to commit a serious personal injury on the accused.”
We cannot concur in this charge for several reasons. It asserts, as it stands, what cannot be legally true; namely, that there may be murder without malice. The learned Judge, we are quite sure, did not intend to assert such a doctrine. Again, itmaintains that unless the deceased made some actual assault upon the defendant, cr intended to inflict a serious personal injury upon him, the homicide cannot be reduced to manslaughter. In the case of Stokes vs. The State, (18 Ga. Rep. 17,) this Court endeavored to establish, and we think successfully, that this proposition is not true. And [533]*533it may not be in the present case, even putting the most favorable construction for the State upon the testimony. Suppose no assault was made by Jordan when he seized the tumbler; still, looking at all that transpired that day, if the effect was to excite beyond control the passion of the prisoner, and yielding to the momentary impulse, surrounded as he was by his enemies, who had followed him to his place of retreat, he killed Jordan, the law, in mercy to his weakness, and in view of the provocation given, might well hold that he shot in sudden heat, and not in the spirit of revenge.
[6.] As to the effect of drunkenness upon crime, we are not prepared to say that the view taken of it by the Judge, was not quite as favorable as the defendant had any right to ask. That drunkenness cannot excuse crime, the code, as well as the common law, is quite explicit. The modern decisions would seem to go to the length of holding, that the drunkenness of the prisoner may be considered on the question, whether the prisoner was excited by passion, or acted from malice. (32 Engl. Com. L. Rep. 751; 4 Humph. Rep. 141.) The Court gave to the prisoner the benefit of this doctrine; and we are not inclined to interfere with the qualification annexed to it, to-wit: that to entitle the accused to the benefit of this rule, he should strike with a weapon which he casually held or obtained, and not use a pistol or bowie knife, deliberately procured with a view to a rencontre.
[7.] As to all those requests which were based upon the idea, that the circumstances which attended the killing, were sufficient to excite the fears of a drunkard, or a coward, or even of Mr. Golden, the law makes no such discrimination. They must be such as to excite the fears of a reasonable man.
As to the competency'of the juror, Slaughter, he will not be sworn again to try this cause; and having made so many rulings upon this subject, each depending like this, upon the special facts of the case, we deem it unnecessary to reiterate our opinion upon this vexatious and oft-recurring topic. The conduct of this juror in lying, as he confesses he did, to [534]*534avoid the performance of a public duty, is reprehensible in the highest degree; and all similar behavior in future, might well provoke the punitory power of the Court.
Upon the whole, the general impression left upon the mind of the Court, by the proof in this record, is this: Mr. Golden was not without fault upon this tragic occasion. He was willing to engage in combat with any of the party except Jordan. But Jordan was thrust forward, and pressed into the service by his associates, to whip Golden. Jordan acted upon the conviction that Golden was a coward, and that he could be bullied as such. To this impression his death is to he attributed. Thousands have fallen in the same way. Bonaparte lost the empire of the world by underrating his enemy. That Golden might have avoided the catastrophe is probable. That he was crowded by his foes is too obvious, from the proof. How far he is excusable for the death of Jordan, if at all, we refer back, to the decision of anotherimpartial }my.
Judgment reversed.