*241 By the Court.
Starnes, J.delivering the opinion.
[1.] The charge which was asked for by the counsel for the prisoner in this case, and which was refused by the Court, was not in apt and accurate words, for purposes of instruction to the Jury. The modification made by the Court, was judicious ; and the charge as given, so far as we can tell from the record, was not exceptionable.
[2.] Upon consideration of the motion for a new trial, affidavits were presented, showing that Samuel Gunn, one of the Jurors who had tried the case, had previously expressed opinions unfavorable to the prisoner; and that the knowledge of this fact had not been obtained by the prisoner or his counsel, until after the trial.
Such a showing, without explanation, would entitle the prisoner to a new trial. But the Juror was heard, by affidavit, in his own vindication; and he states, that he expressed the opinions attributed to him, under the influence of reports, and from excitement; that they did not prejudice or bias his mind, or affect his verdict; that he was prepared to hear the evidence patiently, and find a verdict according to all the evidence, &c.; that all his fellow-jurors were in favor of a verdict of guilty, upon retiring to the jury-room, and he alone had doubts and hesitation, until they “were removed, by carefully considering the evidence”. Some of his fellow-jurors, by affidavit, corroborate this last statement.
[3.] The propriety of permitting the Juror to offer explanatory matter, in vindication of himself, as this Juror has done, has been recognized by this Court, in Monroe’s case, (5 Ga. R. 85); and in the recent case of John Anderson vs. The State, decided at the last term of this Court, at Columbus.— And we have held, that when a Juror is thus heard, after verdict, the Court should place itself, as it were, in the position of triors; and if the Juror’s explanation be such as, in its opinion, should render him competent, if he were before triors, the Court should so pronounce him.
*242Looking at those affidavits from this point of view, we think this Juror was not disqualified by the expressions which he had used; and that the Court was right in refusing a new trial on this ground.
£4.] The motion for a new trial was placed also upon the-ground, that the verdict was contrary to the evidence ; that there was' no. evidence of malice, express or implied, in this-homicide; and that the Jury- should not have found the prisoner guilty of a higher crime than voluntary man-slaughter.
It is not pretended that there was- any evidence of express malice to be found in this record. But the case is put entirely upon the evidence of implied malice, which it is said appears there.
Our Penal Code declares, that “ malice shall be implied1 where no considerable provocation appears, and where all the-circumstances of the killing show an abandoned and malignant heart.”
Let us inquire then, 1. Was there no considerable provocation here ? 2. Did the circumstances of the killing show, an abandoned and malignant heart ?
We learn from the record, that at the time when this difficulty commenced, a buggy of the prisoner, or one that he had in charge, stood before the door of a grocery in the town of Perry, in which the prisoner was ; that the decedent recklessly, (as there was abundance of room for him to have avoided it,) struck against this buggy with the wheel of a wagon which he was driving, and did some damage to it; that information was communicated immediately to the prisoner, who instantly loft the house, hastened rapidly after decedent, who was moving on with his team, and overtook him, after going some 150 yards/
And now to answer the questions which we submit, let us look to the strongest testimony against the prisoner, for what ensued, viz: that of Jesse Cooper, the principal witness for the State. What do we learn from Aim of the provocation ?
He testifies, that the prisoner ran up, as we have stated, seized one of the decedent’s horses, stopped the wagon—in' his passion, cursed decedent for breaking his buggy, and demanded pay*243ment for it. Was Ms passion appeased by what decedent said or did ? According to this witness, the latter said, if he had broken the buggy, he had done ij; accidentally and would pay for it. But did he say this in a way which was calculated to soothe or to irritate Ray still further ? That the reply must have been in manner and spirit of the latter character, is probable, from the still more angry reply of Ray, and his threat to whip him if he did not pay “ right then ”. It is also probable, from decedent’s intoxication—from his recklessness in ■driving against the buggy, and from his, subsequent readiness to quarrel and fight; for he instantly said, that “if that (a fight) was what prisoner was up to, he would have a hand with him ”. Without words of regret, on account of what he had done, on account of the first wrong in the 'transaction ; at all events, without words of this sort expressed, in a way which might conciliate, he manifested a quarrelsome and pugnacious ■spirit—threatened the employment of a weapon, or something like it; for he “ said he had a wagon-hammer he could'use ” ; (this the witness admitted upon the cross-examination;) got off his horse—went, as the witness supposes, to get this hammer, but failing to get it, moved towards prisoner, (for on the cross-examination, the witness says: “ Taylor might have been approaching him, (prisoner,) he thought so at the. time, and thinks so now”,) when he received the prisoner’s blows. In the meantime, still smarting under a sense of the injury done to him, by the breaking of his buggy—incensed by decedent’s manner, as prisoner no doubt thought, of persisting'in injustice -irritated and maddened by the offers of the latter to fight, and his movements to procure a dangerous implement for the purpose, the prisoner ran rapidly to aboard which lay near, seized it, rushed upon the decedent and struck the fatal blows.
We do not hesitate to say, that such circumstances show a considerable—a very exasperating provocation. They present a stronger case of provocation, in our opinion, than that which appears in Lanure’s case, (1 East, P. C. 233,) where one, violently, and with insolence, whipped the horse of another out of Ms way, and the rider alighted, and immediately, in the fight *244•which ensued, killed the assailant. This was held to be manslaughter, on account of the provocation.
To this testimony of Cooper, let us add the evidence of Franks, going to show decedent’s efforts to get the hammer ; the evidence that decedent must have been meeting prisoner afterwards, from the fact that the board picked up by the latter was near the store, and that decedent was going towards the store when Ray met him ; the testimony of Dr. Holt, that the prisoner, from his position, could not have known whether or not decedent had gotten the hammer, (which leaves the inference that he may have supposed decedent had it,); the statements of the same witness, that they “were both meeting each •other”; that “he (decedent) proceeded to meet Ray”, &c. ; that “one seemed to be as anxious for the fight as the other”, &c.
These facts greatly strengthen the view we have taken, and to our minds, make the conclusion very plain, that there was .considerable provocation on the part of the decedent; that there was great heat of blood between the parties, and something of mutual intention to fight.
[5.] In forming this opinion, we have not been unmindful that, according to law, the provocation which reduces such a homicide to voluntary manslaughter, must bo one that involves .some assault by the party killed upon the person killing.
. We think such assault may be found in this case, in the intention of the decedent to resort to violence, when it was unnecessary ; is to be found in the’ evidence which shows a mutual design to fight, and in the fact that the decedent was approaching the prisoner in furtherance of this design.
[6.] Our next question was, do we find in this evidence, •proof that the prisoner was influenced by an abandoned and .malignant heart, in the sense in which the law uses these •terms ?
This is commonly held to be evinced by a weapon, or other appliance likely to produce death, and by brutal and bloodthirsty use of such instrumentality.
In this case, there was no bowie-knife, dirk, or pistol, or *245other such instrument, employed by the prisoner, which he had been previously carrying, and which, accordingly, might be regarded as manifesting “ a heart fatally bent on mischief, and desperately at enmity with all mankind”; but the instrument used was a board (heavy enough, no doubt, easily to destroy life, if applied with violence,) which had not been previously provided by the prisoner, but accidentally lay at hand; was perhaps, the nearest thing of the sort to him, and was hastily taken up. Nor is there anything in the record to authorize the belief, that if this instrument had been slighter and less dangerous, and not likely, on that account, to produce death, the prisoner would have passed it by for the purpose of procuring a weapon more deadly.
It should be added, too, that after he had stricken the blows which he inflicted, Avhen called on to desist, though in the act of again striking, and even with the board raised for this purpose, he did desist, and threw it down.
We feel it our duty to observe, however, that though, in our opinion, there is, in this testimony, no evidence of a malignant intention on the part of the prisoner, to take away the life of the unfortunate decedent, yet, the homicide is not without features of considerable brutality. There was- no necessity, whatever, that the prisoner should have resorted to the degree of violence which he employed. The decedent was aged—was intoxicated—was almost incapacitated to have inflicted any very great bodily harm on the prisoner. The beating, therefore, was barbarously cruel. The shocking and profane language, too, used by the prisoner, after he was informed that the victim of his passion was no more, .serves to darken the coloring in the ghastly picture of his transgression.
In consideration of these things, we would be glad to see a penalty more severe than that which is attached to the crime of man-slaughter, visited upon this prisoner. But we are not prepared, for the reasons we have given, to say that this unhappy young man should suffer the same punishment, appointed to him who, in cold blood, and deliberately, destroys the life of *246his victim, or to the homicide, who in the absence of considerable provocation, and with sanguinary recklessness, uses a deadly weapon, or other instrumentality, because it is, in its nature, likely to produce death. We therefore send this case back to the Jury.