*59[1.] Was the charge of the Court correct? The Judge instructed the jury “ that it was not necessary to show that malice had existed any length of time previous to the commission of the offence, but there must be malice to constitute the offence, which might have arisen simultaneously with the offence.” The charge amounts simply to this: that malice must exist at the time of the hilling / that is, malice in the legal acceptation of that term ; and it need not have existed any length of time previously. Was the killing done under a state of feeling, on the part of the slayer, which the law denominates malice? If so, the killing would be murder. Whether malice be express or implied, if the killing resulted from either, the crime is the same. Malice shall be implied, where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant Heart.
[2.] It is insisted that it was shown here that the deceased assaulted the defendant, and that, therefore, the killing was voluntary manslaughter only, and not murder. Whether there was any assault made on defendant or not, was a question for the determination of the jury, and unless their finding be clearly wrong, we should not disturb it. Revel vs. The State, 26 Ga. R. 276. In this case, page 282, the Court says: “The jury are made the judges of the law as well as of the facts in criminal cases. Neither this nor any other Court should suffer a person to be deprived of his life, where his guilt is not fully established. Is this case so clear as to warrant, much more to demand, the interference of this Court ? We think not. On the contrary, we must say the testimony authorizes the verdict. No justification is shown for the killing.” And so we say in this case. But even if there had been an assault shown, was the assault such as to free the defendant from the crime of murder ? Roscoe’s Cr. Ev. 126, says: “ Although, under circumstances, an assault by the deceased upon the prisoner may be sufficient to rebut the general presumption of malice arising from the killing, yet it must not be understood that every trivial provoca*60tion which, in point of law, amounts to an assault, or even a blow, will, as a matter of course, reduce the crime to manslaughter. For when the punishment inflicted for a slight transgression of apy sort, is outrageous in its nature, either in. the manner or continuance of it, and beyond all proportion to the offence, it is rather to be considered as the effect of a diabolical malignity than of human frailty, and is one of the symptoms of that which the law denominates malice, and the crime will amount to murder, notwithstanding such provocation. “Barbarity,” says Lord Holt, (Keat's Case Comb. 408,) “ will often make malice.” 1 East. P. C. 234; 1 Russ, by Grea. 515 (1). If, without adequate provocation, a person strikes another with a deadly weapon, likely to produce death, although he had no previous malice against the party, yet he is to be presumed to have had such malice at the moment, from the circumstances, and he is guilty of murder.’’ 1 Rus. on Cr. 514.
It is insisted that the Court erred in the charge, that if the parties had separated by mutual consent, the prisoner had no right to approach the bed of the deceased, or place his hand upon her person. The ground of this objection is that it did not appear by the evidence that the parties had agreed to separate. The evidence does show they had for some time previous to the killing, lived very unhappily together, and had, in fact, separated. The jury could determine whether the separation was by mutual consent, better than we can, and we are not disposed to disturb their finding. It is not denied that the charge contains sound law ; the only complaint is that there were no facts to justify it. We think the jury might very well find that the parties, by agreement, had separated.
[3.] Was the verdict contrary to the evidence and the law ? There were two theories of the real facts of the case. The defence insisted that the account which Bob gave of the transaction, being introduced by the State, should control ; that, according to that account, it was a case of manslaughter, and that the jury, in finding a verdict of mur*61der, committed sucli an error as to require the interference of this Court. On the other hand, the prosecution insists that while the defendant’s sayings are evidence, they are not conclusive, and that other facts in the case show that his account of the transaction is not the true one, but was framed for the purpose of justifying his conduct. It is further insisted, that as the jury have passed on the merits of this question, there is no such error in their finding as to require this Court to set it aside. Tire theory of the prosecution is that defendant killed deceased in a fit of jealousy, for refusing to gratify his lusts, such refusal being caused, as he supposed, by her fondness for another — the father of her youngest child — and without any sort of justification ; and then attempted to manufacture such a state of facts as would make it appear that she was the aggressor. In support of this theory, it is insisted that but two weapons, the Tmife and razor of defendant, were found, both bloody ; and the pants of defendant looked as if they had been handled by bloody hands, and there was blood in each pocket of the pantaloons. From these facts the inference is drawn, that defendant, after cutting the throat of deceased, made the slight cuts, or “ slight gash,” as Mack Felton calls it, on his body, which appeared to have been made with a sharp instrument, “skin deep;” and that he then, with his hands reeking with the life blood of deceased, took his knife out of his pantaloons pocket and with that cut his own throat, and threw the knife under the bed, for the purpose of making it appear that it had been used by deceased. The fact that the wound on defendant’s neck seemed to have been made by a dull instrument, is relied on to show that the Tmife may have been used by defendant in cutting his own throat, for if the razor had been used, the cut would have appeared smooth. These facts and inferences are relied on to show that the jury were justified in disbelieving the account given by defendant, and in finding contrary thereto. The homicide was not denied, and the only testimony to reduce the grade below murder was the sayings of defendant, *62and the j my thought these were not credible. It is insisted tjiat defendant was acting a part, as shown by the fact that he appeared to be dead, although his pulse was strong— mumbled out something, although the wound on the neck was not very dangerous; and, besides this, it is insisted that the deceased was trying to get away from him when he cut her throat, even according to his own statements, and that his conduct showed a reckless brutality wholly without excuse. Judge Lumpkin and I think this is precisely the sort of case which should be left to the decision of the jury. They are in a better position to judge of the real facts than we possibly can be; and as one theory of the facts, and one pretty well supported by the evidence, too, will uphold the finding, we do not think that this finding is so clearly wrong as to make it our duty to interfere. Indeed, we think the verdict is right; that the defendant, urged on by his lusts, was endeavoring to gratify his desires; that being denied this, and acting from feelings of jealousy, he took the life of this helpless woman as she was endeavoring to escape from him. He had struck her before they parted, which shows the brutality of his character ; and now, after she had left her bed to get out of his way, he struck at her with his razor and missed her; she stumbled, and he struck at her again and cut her throat, inflicting a wound of which she died in a few minutes. Is this manslaughter ? Must we say this conviction is so clearly wrong that we will set it aside ? I do not think it is our duty to do so.
, Judge Haréis thinks the account given by the defendant of the transaction is the true one, and that the verdict should have been one for voluntary manslaughter, and for this reason, as I understand his position, cannot concur in the judgment which we render, affirming the judgment of the Court below.
Judgment affirmed.
Habéis, J. dissented.