STONE, J.
The accused, having been convicted of murder in the second degree, can not, on another trial, be convicted of a higher grade of homicide.—Bell v. The State, 48 Ala. 684. In many carefully considered cases, we have discussed and declared the various grades of criminal homicide, as classified by our statutes, and we do not deem it necessary to enter again on any general discussion of the subject. McManus v. The State, 36 Ala. 285; Fields v. The State, 52 Ala. 348; Ex parte Nettles, 58 Ala. 268; Judge v. The State, Ib. 406; Mitchell v. The State, 60 Ala. 26; Boswell v. The State, 63 Ala. 306; Brown, Ex parte, 65 Ala. 346.
We feel it our duty to notice and condemn the volume the record in the present case is made to assume. All that is material could have been brought before us in a much smaller compass, and thus have relieved us of much labor in reading details by various witnesses, often repeating substantially what had been previously testified to by other witnesses. A further reason. The weight or sufficiency of evidence to justify a conviction, or demand an acquittal, is, under our system, a question for the jury, with which we have nothing to do, further than to declare rules of law. All that need be stated, in raising questions on charges refused, is that there was testimony tending to support the hypothesis of the charge. So, on the question of the admissibility of evidence, the inquiries are, does it shed light on the issue ? is it pertinent? is it legal? Sometimes the testimony offered is so directly connected with the issue, that its admissibility stands self-asserted. The pertinence of other testimony depends on something which has gone before, or is to accompany it. In presenting questions as to the admissibility of evidence of the latter class, it is only necessary to state enough to show its relevancy. Beyond this, anything stated is a needless incumbrance. Bo, when a question has been once raised and reserved, it can not be necessary to raise the same question a second time. If testimony is erroneously admitted or excluded once, the judgment will be reversed. It can only be reversed, if such erroneous ruling has been made more than once. In what we have said, we have reference to a too prevalent fault, which does not apply to this case more than it does to many others.
In Mitchell v. The State, supra, we defined what constitutes murder in the first degree under our statute. It is not [430]*430every killing with malice aforethought which rises to the bad eminence of murder in the first degree. One class is defined ás a “ willful, deliberate, malicious, and premeditated killing.” In defining that class to juries, each and all of the qualifying adjectives should be employed; for, unless the killing fall precisely within one of the classes enumerated in section 4275 of the Code, and therein denounced as murder in the first degree, it is murder in the second degree, manslaughter, or excusable homicide.—Judge v. The State, supra. Hence, every unlawful killing, which does not fall precisely within one of the defined classes of murder in the first degree, and yet rises above the grade of manslaughter in the first degree, is murder in the second degree. If life be taken unlawfully, by a blow intentionally given, with an instrument calculated to produce death, and this blow be not the immediate, unpremeditated result of an assault, or assault and battery inflicted on the slayer, and be not a necessary means of protection against an assault calculated to produce death, or grievous bodily harm, this is murder. But, if it be wanting in any one or more of the qualities of willfulness, deliberation, malice, premeditation, as we have defined those phrases, it will be murder in the second degree.—See Ex parte Brown, 65 Ala. 446. Under these rules, the following portions of the general charge were faulty and incomplete, and should not have been given : “ If the jury should find, beyond all reasonable doubt, under the law as stated to them, that the defendant killed Cato Lowery with malice aforethought, and that the killing occurred in this county before the finding of the indictment, it would be their duty to find him guilty of murder in the first degree.”
“Manslaughter is a voluntary killing of a human being without malice.” (Must have been unlawful as well as voluntary.) “No amount of provocation will justify the taking of human life.” (Calculated to mislead — because, if danger to accused was imminent, threatening him with loss of life, or grievous bodily harm, and he had no other mode of escape, then he could slay his assailant, But, if this stood alone, we would not probably reverse. Tendency to mislead is not ground for reversal.)
Many of the charges asked should have been given. We specify the following: “ If the jury have a reasonable doubt, generated by all the evidence in this cause, as to whether the defendant acted in self-defense or not, then they should acquit.”
“In this cause, the burden of proof is not shifted from the State to the defendant, and the presumption of innocence abides with the defendant until all the evidence in the cause [431]*431convinces the jury, to a moral certainty, that the defendant cannot be guiltless.”
“In a criminal cause, when the evidence, whether introduced by defendant or State, establishing the killing, also shows the matters in justification or excuse, the burden of proof is not thereby shifted from the State upon the defendant, and it does not devolve upon the defendant to prove to the full satisfaction of the jury the matters in justification or excuse before they can acquit; and it is sufficient to authorize an acquittal, that the jury have a reasonable doubt from all the evidence of the guilt of the defendant.”
“ If the jury believe from the evidence that Cato Lowery struck Shadrach Smith with a brick just as he was upon the edge of the trench, or ditch, and that Shadrach then tripped and fell across the trench, and that just as he was rising upon the other side of the trench, the deceased was stauding over him with a lifted hatchet, the defendant not having brought on the difficulty, then they are authorized to presume that Shadrack struck in self-defense, and should acquit him.”
“ If the jury believe from the evidence that a hatchet and two-thirds of a brick are deadly weapons, and that the deceased was attacking the defendant with either or both of these w'eapons, sufficiently near to have inflicted upon him grievous bodily harm — -the defendant retreating and doing nothing to provoke the assault — then the jury should acquit the defendant.”
“It is the duty .of the jury to attempt to reconcile conflicting testimony, but if, upon an examination of all the evidence in this case, they find it so conflicting as to leave upon their minds a reasonable doubt as to the guilt of the prisoner, then they must acquit.”
“ If the jury believe from the evidence that deceased left the place where he was ordered to lay the floor, and followed the defendant across the warehouse, and struck him with a brick, or. two-thirds of a brick, just as he was crossing the trench, and that defendant fell upon the opposite side of the trench, defendant not having brought on the difficulty, and just as he rose deceased was standing over him with an uplifted hatchet, or with his hatchet held in a menacing manner, and that defendant struck under a reasonable belief that he was in imminent danger of great bodily harm, the jury ought-to acquit the defendant.”
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STONE, J.
The accused, having been convicted of murder in the second degree, can not, on another trial, be convicted of a higher grade of homicide.—Bell v. The State, 48 Ala. 684. In many carefully considered cases, we have discussed and declared the various grades of criminal homicide, as classified by our statutes, and we do not deem it necessary to enter again on any general discussion of the subject. McManus v. The State, 36 Ala. 285; Fields v. The State, 52 Ala. 348; Ex parte Nettles, 58 Ala. 268; Judge v. The State, Ib. 406; Mitchell v. The State, 60 Ala. 26; Boswell v. The State, 63 Ala. 306; Brown, Ex parte, 65 Ala. 346.
We feel it our duty to notice and condemn the volume the record in the present case is made to assume. All that is material could have been brought before us in a much smaller compass, and thus have relieved us of much labor in reading details by various witnesses, often repeating substantially what had been previously testified to by other witnesses. A further reason. The weight or sufficiency of evidence to justify a conviction, or demand an acquittal, is, under our system, a question for the jury, with which we have nothing to do, further than to declare rules of law. All that need be stated, in raising questions on charges refused, is that there was testimony tending to support the hypothesis of the charge. So, on the question of the admissibility of evidence, the inquiries are, does it shed light on the issue ? is it pertinent? is it legal? Sometimes the testimony offered is so directly connected with the issue, that its admissibility stands self-asserted. The pertinence of other testimony depends on something which has gone before, or is to accompany it. In presenting questions as to the admissibility of evidence of the latter class, it is only necessary to state enough to show its relevancy. Beyond this, anything stated is a needless incumbrance. Bo, when a question has been once raised and reserved, it can not be necessary to raise the same question a second time. If testimony is erroneously admitted or excluded once, the judgment will be reversed. It can only be reversed, if such erroneous ruling has been made more than once. In what we have said, we have reference to a too prevalent fault, which does not apply to this case more than it does to many others.
In Mitchell v. The State, supra, we defined what constitutes murder in the first degree under our statute. It is not [430]*430every killing with malice aforethought which rises to the bad eminence of murder in the first degree. One class is defined ás a “ willful, deliberate, malicious, and premeditated killing.” In defining that class to juries, each and all of the qualifying adjectives should be employed; for, unless the killing fall precisely within one of the classes enumerated in section 4275 of the Code, and therein denounced as murder in the first degree, it is murder in the second degree, manslaughter, or excusable homicide.—Judge v. The State, supra. Hence, every unlawful killing, which does not fall precisely within one of the defined classes of murder in the first degree, and yet rises above the grade of manslaughter in the first degree, is murder in the second degree. If life be taken unlawfully, by a blow intentionally given, with an instrument calculated to produce death, and this blow be not the immediate, unpremeditated result of an assault, or assault and battery inflicted on the slayer, and be not a necessary means of protection against an assault calculated to produce death, or grievous bodily harm, this is murder. But, if it be wanting in any one or more of the qualities of willfulness, deliberation, malice, premeditation, as we have defined those phrases, it will be murder in the second degree.—See Ex parte Brown, 65 Ala. 446. Under these rules, the following portions of the general charge were faulty and incomplete, and should not have been given : “ If the jury should find, beyond all reasonable doubt, under the law as stated to them, that the defendant killed Cato Lowery with malice aforethought, and that the killing occurred in this county before the finding of the indictment, it would be their duty to find him guilty of murder in the first degree.”
“Manslaughter is a voluntary killing of a human being without malice.” (Must have been unlawful as well as voluntary.) “No amount of provocation will justify the taking of human life.” (Calculated to mislead — because, if danger to accused was imminent, threatening him with loss of life, or grievous bodily harm, and he had no other mode of escape, then he could slay his assailant, But, if this stood alone, we would not probably reverse. Tendency to mislead is not ground for reversal.)
Many of the charges asked should have been given. We specify the following: “ If the jury have a reasonable doubt, generated by all the evidence in this cause, as to whether the defendant acted in self-defense or not, then they should acquit.”
“In this cause, the burden of proof is not shifted from the State to the defendant, and the presumption of innocence abides with the defendant until all the evidence in the cause [431]*431convinces the jury, to a moral certainty, that the defendant cannot be guiltless.”
“In a criminal cause, when the evidence, whether introduced by defendant or State, establishing the killing, also shows the matters in justification or excuse, the burden of proof is not thereby shifted from the State upon the defendant, and it does not devolve upon the defendant to prove to the full satisfaction of the jury the matters in justification or excuse before they can acquit; and it is sufficient to authorize an acquittal, that the jury have a reasonable doubt from all the evidence of the guilt of the defendant.”
“ If the jury believe from the evidence that Cato Lowery struck Shadrach Smith with a brick just as he was upon the edge of the trench, or ditch, and that Shadrach then tripped and fell across the trench, and that just as he was rising upon the other side of the trench, the deceased was stauding over him with a lifted hatchet, the defendant not having brought on the difficulty, then they are authorized to presume that Shadrack struck in self-defense, and should acquit him.”
“ If the jury believe from the evidence that a hatchet and two-thirds of a brick are deadly weapons, and that the deceased was attacking the defendant with either or both of these w'eapons, sufficiently near to have inflicted upon him grievous bodily harm — -the defendant retreating and doing nothing to provoke the assault — then the jury should acquit the defendant.”
“It is the duty .of the jury to attempt to reconcile conflicting testimony, but if, upon an examination of all the evidence in this case, they find it so conflicting as to leave upon their minds a reasonable doubt as to the guilt of the prisoner, then they must acquit.”
“ If the jury believe from the evidence that deceased left the place where he was ordered to lay the floor, and followed the defendant across the warehouse, and struck him with a brick, or. two-thirds of a brick, just as he was crossing the trench, and that defendant fell upon the opposite side of the trench, defendant not having brought on the difficulty, and just as he rose deceased was standing over him with an uplifted hatchet, or with his hatchet held in a menacing manner, and that defendant struck under a reasonable belief that he was in imminent danger of great bodily harm, the jury ought-to acquit the defendant.”
“If the jury believe from the evidence that Milly Gilbert is contradicted on material points, such as by the shape and direction of the wound, and other evidence in this cause, then this may be sufficient to raise a reasonable doubt in the minds of the jury of the truth of this witness’ testimony.”
[432]*432“Proof of contradictory statements, declarations, or testimony, on material points, made by the witness George Brown, may be sufficient to raise a reasonable doubt in the minds of the jury, of the tr-uth of this witness’ testimony.”
There are probably other errors in the charges given and refused, but we deem it unnecessary to point them out.
The testimony in this record shows the transaction in two very different phases. It is for the jury to determine which is the true one. It is the duty of the presiding judge, on another trial, to declare the law to the jury on each phase of the facts, which the testimony tends to establish. No matter how weak, or inconclusive, the presiding judge may himself regard the testimony on any given question, he can not ignore it in his charge. He judges only of its relevancy, not of its weight. The jury, under the rules of law, are the sole judges of the credibility and weight of the testimony.
The remaining questions raised by the record, will not, probably, arise again, in the form in which they are now presented, and we will not consider them. In some of the questions put to witnesses, the court probably ruled erroneously. We mention only one — the answer given by the witness, Dozier, as to what he, the witness, had said to the accused, when the latter picked up the hatchet of deceased. This'answer should have been disallowed.
The judgment of the Circuit Court is reversed, and the cause remanded. Let the defendant remain in custody, until discharged by due course of law.