Hall, Justice.
All of tbe grounds of tbe motion for a new trial were properly abandoned, upon tbe hearing before this court, except the 4th, 8th and 15th.
1. The fourth ground complains of the judge’s charge in relation to the force and effect of ihe prisoner’s statement as evidence. After instructing the jury that this statement should have such force only as they might see proper to give it, but that, although it was not made under oath, they might believe it in preference to the sworn testimony in the case (Code, §4637), he added, that it was proper to call attention to the fact that the evidence was delivered under oath, and that the prisoner’s statement was not, and-they should not set aside the sworn testimony of witnesses without sufficient cause; that they should look to the evidence, and determine from that what the truth was, and then to the prisoner’s statement, and then give to it such force as they might think proper, and from the whole case, as thus presented, they would find the truth; that the law cast upon them the responsibility of doing this.
[581]*581It is insisted that this addition, contained inaccurate language; that'it was awkwardly expressed; that it tended to give undue prominence to the sworn testimony, while it detracted from the weight, which it was evidently the purpose of the legislature to empower the jury, if they saw proper, to give to the prisoner’s statement; that it emasculated and impaired the privilege conferred by this law; and that it was so confused and inexact as not to be readily intelligible to the j ury, and instead of assisting them to reach a correct conclusion, it was well calculated to mislead them. While we do not fully concur in this criticism, and think it rather extreme, yet we are of opinion that it would have been better in this, as in all cases, to give in charge the statute and there leave the matter, as was heretofore stated by this court. 65 Ga., 508. It might not amount to error to remind them, as was done in Poppell vs. The State,
2. We are of opinion that there is no error in refusing to charge as set forth in the 8th ground of the motion for a new trial. There is nothing in the evidence which could have justified the court in instructing the jury that they might find a verdict for a lower grade of the offense than that set forth in the indictment, — as stabbing, or assault, or assault and battery. There was no actual assault made upon the defendant, nor any attempt to commit a serious personal injury upon him by the young girl whom he assailed with a deadly weapon, nor were there other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied — nothing whatever to show that the attack was the result of a sudden, violent impulse of passion, supposed to be irresistible. This invasion upon the rights of a father and his family seems to have been deliberately planned, and to have been carried into effect in pursuance of a previously expressed purpose to have satisfaction or an explanation, or, in his own words, to make the family “ ante up.” After he had been disarmed, and his victim rescued from his grasp, and while he was smarting under this defeat, he expressed his intention to renew the combat and to kill her. It has been frequently held, that in such a case, the judge should not instruct the jury as to their power to find the defendant guilty of a lower grade of the offense charged.
3. There was no error in rejecting the testimony set out in the 15th ground of the motion. Taken in connection with the judge’s explanatory note, it is doubtful if it could have served the purpose of impeaching the witness, whose credit it seemed designed to affect. What it was in its full detail does not appear from the record; its materiality is not shown, and it is most manifest that if it was adduced to impeach the witness, no foundation was laid [583]*583for its introduction. No opportunity was afforded the witness to explain ; she was not permitted to see or hear read the letters in question; and her attention was called to such portions only of this correspondence as the examining counsel saw proper to recite. At this stage of the examination, he was distinctly informed by the presiding judge, that unless the letters were introduced, the testimony based upon them would be ruled out; they were not introduced, and the testimony founded thereon was expunged from the record — not, however, until the defendant had the benefit of any impression that it may have made upon the minds of the jury, although it had been thus improperly and irregularly gotten before them. It is unquestionably the duty of the party alleging error to make it appear. In the absence of these epistles, it is impossible for us to determine whether error did, in fact, exist.
As intimated, there is nothing in any of the other grounds of the motion entitling the defendant to a new trial. The verdict is not only sustained, but required by the evidence. We could not, therefore, if we would, and would not, had we the option, interpose to shield this defendant from just punishment for this most dastardly and murderous assault upon a woman, whose affections he had engaged, and of which he shows himself to have been eminently unworthy.'
Judgment affirmed.
71 Ga., 276.
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