By the Court.
Lumpkin, J.delivering the opinion.
We shall not undertake to notice each specification in the* motion for a new trial, but group them together for the sake* of brevity.
[1.] And to all the errors complained of, as it respects the* special presentment, and the misnomer of the grand and' traverse jurors, we make this general reply, that those irregularities which occured before the arraignment, should have-been specially pleaded: and secondly, thatno motion in arrest-of judgment shall be sustained, for any matter not affecting the real merits of the offence charged in the indictment. (Cobb, 833.) Under this provision ofthe Code, we held, that the failure to read the indictment to the jury was not goodin arrest of judgment, (Wright vs. The State, 18, Ga. Rep., 383.)
[3.] Error is assigned because the Court did not charge the jury as to involuntary manslaughter. Is there a particle of proof to authorize such a charge? In Davis vs. The State, 10, Ga. Rep., 101, citing the previous case of Holder vs. the State, 5, Ga. Rep. 441, this Court did say, that “in view of the facts disclosed by the record,” the Court below ought to have given to the jury the definition of murder, voluntary-manslaughter, and the two grades of involuntary manslaughter, and also the definition of justifiable homicide; and left it to them to find under which definition it fell; and not to *84have instructed the jury that they must find-the defendant guilty of murder, voluntary manslaughter, or not guilty.
Could we say the same thing here — in view of the facts disclosed in this record ? Have counsel in all their commendable zeal pointed out a scintilla of evidence which would reduce this killing to involuntary manslaughter? Did the prisoner in any of his confessions intimate any circumstance which should justify such a supposition ?. Did he say to the widowed wife, who, when she overtook him on the road, told him that ihe had killed her husband, that the shot was accidental, or that he did not intend to take his life, but to cripple him ? Nothing of the kind.
It was then, as the Court stated, either murder, or voluntary manslaughter, or justifiable homicide. And so the jury were obliged to find. And such was the ruling of this Court in Boyd vs. the State, 17. Ga. Rep. 193.
Counsel insist, that inasmuch, as any grade of homicide may be found under-any indictment for murder, that it is the duty of the Court to charge, on each, as each is necessarily put in issue bjr the pleadings. We demur to this proposition ; and on the contrary, hold that the charge should apply to the case made by the pleadings and the proof. And that in just such a-case as this, to charge th.e jury as to the crime of involuntary manslaughter, would have been as inapplicable to the case, as to have instructed them as to the law of arson or robbery.
[3.] Was the Court right in refusing to give the written charge requested by defendant’s counsel ? The request was that the fears of a coward would justify homicide. The Penal Code says, the fears of a reasonable man; reasonably courageous^-reasonably self-possessed. «
[4.], Was the verdict of guilty not only contrary to the evidence, but strpngly and decidedly so ? We think it was in accordance, .with the testimony, and the weight thereof. What other verdict could the jury have found upon the facts ? There was no necessity for the killing. Teal himself, did *85not pretend to Mrs. Northcutt, Dr. Glover and others, that there was — that he shot in self-defence; that he took the life of Northcutt to save his own. The proof shows that the very opposite of all this was true. That revenge had taken possession of the heart of this misguided man ; and that to gratify it, he wantonly and wickedly murdered his neighbor in the presence of his family.
[5.] Ought a new trial to have been granted on 'account of the newly discovered evidence ? Dr. Glover would swear that the deceased told him that he struck at Teal with his gun across the fence. But this was sometime before the consummation of the tragedy. Northcutt had not then gone • outside of his inclosure. The accused had walked off some thirty or forty steps; and turning, said, “ damn you, I am a great mind to shoot you, any how, or blow a ball through you.” And the act accompanied the threat. Let it be remembered, too, that Dr. Glover states, that Northcutt said to him, at the same time, that at the time he was shot, he was otiering no violence to Teal; neither had he attempted any, except that of striking at him across the fence, as already noticed.
We do not see that this proof could, by any possibility, change or modify the verdict of the jury. It ought not.
Upon any view of the case, we are constrained to affirm the judgment of the Circuit Court, overruling the motion for a new trial.
We sincerely pity this wretched man. But the law must • be vindicated. Human life, the most sacred of God’s gifts, must be protected.
Judgment affirmed.