This case- presents, by the ¡record, some questions of great public interest, in the administration of the criminal -laws of this State.
1. The indictment, upon which the plaintiff in error was arranged and plead not guilty, and upon which a jury were empanelled, was taken by the Solicitor General to the grand jury room, and in the presence of the foreman and some of the grand jury (number not known,) changed as follows: The indictment contained these words, “of which mortal wound the said John Wormack,-within one year from the day first aforesaid, died.” The Solicitor General struck out *those words and inserted, “then and there” before the word died. We hold that the indictment as it originally stood was sufficient, and the alteration was both unnecessary and unauthorized..
2. There is nothing which should be more specially guarded by Courts than any interference with, or alterations of papers emanating from the grand jury. In receiving the indictments or presentments from that body the Solicitor General, by the customary ¡inquiry, obtains, in open Court, the consent of amendment in all matters of form; but in matters of substance there is no hand can legitimately touch the indictment or presentment but by the direction and action of the grand jury. In this tease the legal effect of this anomalous proceeding constitutes the basis of the first ground of error. The prisoner, by his counsel, after the case proceeded to the jury, ¡moved for a verdict of not guilty, which was overruled by the Court. Was the Judge below right in overruling the *502motion for a ¡verdict of acquittal? We think he was. Waiving what might have been the judgment of the Court upon a motion to quash the indictment, or upon plea or demurrer thereto, we cannot hold that the motion for verdict was proper. We are not unaware of this practice having crept into the administration of the criminal law, and of many escapes from the penalties of crimes having therefrom. In fact, the usual mode of taking advantage of exception to indictments, is by motion to acciuit, after the jury are empanelled and charged with the consideration of the case upon its merits. But the law does not authorize the practice. Section 4545 of the Code expressly directs that if the prisoner, upon being arrainged, shall demur to the indictment, or plead to the jurisdiction of the Court, or in abatement, or any special plea in bar, such demurrer or plea shall be made in writing, “and if decided against the prisoner, he may still '¡rely on the general issue of not guilty;” and section 4536 is in these words: “All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.” *Under the law, we hold that the exceptions to an indictment must be made before the trial, on the general issue of not guilty. If they be matters of form, or such as may arise upon special demurrer, or upon plea in abatement or in bar, the law requires that they shall be made and adjudicated preliminary to the trial, and if not made them, they are held to be waived, in contemplation of law, and no motion in arrest of judgment shall be sustained, except upon some matter touching the real merits of the offense charged in the indictment. The spirit as well as letter of our law is, to blot out the technicalities 'and subleties, which ingenious device so often raises, to defeat the administration of justice. “Every indictment is deemed sufficiently technical, which states the offense in the terms or language of the Code, or so plainly that the nature of the offense charged may be éasily understood by the jury:” section 4535, Code.
3. Error is assigned upon the direction of the Judge below to the witnesses, to hear their evidence read ]over to them in the presence and hearing of the jury. We do not regard this as error. On the contrary, it is both proper and legal for the Judge to have the testimony, as taken down, read over to the witnesses, so that they may correct any matter not properly understood, or omitted. Nor do we hold that the Judge must sit in criminal cases as an automaton and not open his lips in the direction of the trial. There is no office of higher responsibility than that? of the Judge of the Superior Court, in this State. And the law clothes the Circuit Judges with the highest and most sacred powers; and in *503all cases, both civil and criminal, it is not only their prerogative right but official duty, to watch the progress of the trials before them, and see that the laws are enforced without restraint. The law gives them power, for purposes of public justice, and its exercise is invoked to control and direct cases tried beforg them, and this Court will not limit the manner of its execution, in furtherance of substantial justice.
4. Neither do we regard the admission of the dying declaration, under the circumstances of this case, erroneous. The examination of the witness Bass was close and critical, *in regard to the condition of the deceased, and his consciousness of approaching death, and came substantially within the rule of law upon this subject. When dissolution is approaching, and the dying imán has lost all hope of life, and the shadows of the grave are gathering in around him, and his mind is impressed with the full sense of his condition, the solemnity of the scene and hour gives to his statements a sanctity of truth, more impressive and potential than the formalities of an oath'—- and such declarations ought to be received and considered by the jury, under the charge of the Court, as to their effect and weight, in all cases where the evidence of fact warrant their admissibility. :
5. The permission of leading questions objected to in this case, was not error. Section 3809 of the Code gives to the Court a wise discretion, in allowing leading questions, when justice requires it. The law entrusts this power to the judicial discretion of the officer presiding at the trial, who is cognizant of the surrounding circumstances, and can perceive the necessity as it arises. No general rule, on this subject, could be laid down. Each case presents its own peculiar claim, and each must rest on the peculiar characteristics which invoke the Judges’ discretion. This Court can only review its exercise, when it has been illegally abused.
6. In regard to the competency of the witness, Ann Crawford, we feel satisfied that the objection to her, on the ground of relationship, was properly overruled. The exclusion of the wife of a party is based upon principles of public justice, arising out of the sacredness of the domestic, tie, which cannot be considered applicable to one whose condition did not involve this relationship. In her preliminary examination she says she had never married the accused, and she was clearly competent.
7. Touching a matter of practice, in this case, assigned as error, it appears that after the jury had been some time out, they sent a request to the Court to recharge them, which he did, having first caused counsel on both sides to be summoned, defendant’s attorneys waiving his presence, and the Court read over to them his charge. We see nothing in conflict *with law in this proceeding, which, from its frequency, may be regarded a practice of the Courts. Juries, under our Code, are judges of both the law *505and facts, and, for myself, I feel no hesitancy in entrusting to honest men the application of the principles of law governing the case, which, under their oaths, they are bound to apply; and where there is doubt, difference or misunderstanding of the law between them, the course is proper and right to explain to them the law by recharging them.
8. Having disposed of the matters of practice in this case, we now come to. the law as charged by the Court. The Court charged the jury, that when a killing had been committed, the law presumed malice, and it was incumbent upon the defendant to show there was no malice. Was this error? We think not. That the law implies malice where the. killing is proved, is a well settled rule, declared by all publicists, and which had continuous sanction by the repeated adjudication of Courts. This being true, the onus of removing such legal presumption iS upon the defendant. If the converse of the proposition were true, then every killing would be presumed innocent, and under such a principle human life would, indeed, be like the flower of the field.
9. Again, it is objected that the Judge committed error in his refusals to charge. The request of defendant’s counsel to the Court was to charge the jury as to the different grades of homicide. As will appear by the view we take, of this case, this point in the record has invoked the most consideration. The adjudications of this Court have been read and pressed with earnestness. We have carefully considered the cases, and the circumstances under which each has been adjudged, and the spirit and principles of the decisions do not go to the extent claimed. We have not held that the Judge below must charge, In all cases, upon the various grades of homicide, but have qualified this general rule by this principle, that, in cases where the facts justify or require such charge, it shall be given. With or without request, it is the duty of the Court to present to the jury all the law applicable to the case, and if facts, however slender, support theories of the *defense, invoking any or all the grades of homicide, they must be given in charge. Errors of omission are as fatal as errors of commission. - The Judges below are bound to know the law applicable to the case, and must give it in charge to the jury. This is imperative, and overwhelming in its convictions and direction of duty. But when the facts do not call for such general charge on all the grades of homicide, it is not the duty of the Judge to confuse and embarrass the jury with theories not warranted by the facts.
10. The facts in this case show that the deceased went to the house of the accused, being called there, and, he was at the door, the accused pointed his pistol and shot him. There was no quarrel or provocation; the defense accounted for the shooting upon the ground that he was in fun. and stumbling over a box, the ■ pistol went off and killed de*506ceased. Upon this statement of facts, was it the duty of the Court to charge the various grades of homicide? We think not. The case presented was one either of murder from implied mal • ice, in the wantonness of the act and its reckless disregard of human life, or it was accident. The Judge charged the jury upon the law of malice as found in the Code, and also, that “a person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design or culpable neglect.”' There was but one view of the case the jury, under the facts, could have legally considered, and that was, on the theory of the defense, involuntary manslaughter, as defined in the Code, section 4261. By the review of this record on this subject, we find that the Court charged the jury, covering this subject, in language stronger and more favorable than the law which the request would have invoked. He charged “that if the killing was accidental, the defendant was not guilty, and if the defendant stumbled over a box, and, in the act of stumbling or recovering, the pistol went off and deceased was shot, it was not murder and the jury should return a verdict of not guilty.” This charge went further in favor of the accused than the law; for if the defendant, pointing a loaded pistol at deceased, even in sport, to frighten him, in moving *towards him, had in fact stumbled, and by mischance the pistol went off and killed deceased, the consequence of such illegal act resulting in death would not have been guiltless; the accident would have removed the intent of malice, but the wantonness and the danger resulting from the act in death, would have been criminal.
11. The last question presented by the record, is whether the verdict is contrary to the law and the evidence. In 39th Georgia 34, this Court, in a case somewhat assimilating this by the analogy of its facts, where the defense insisted that the shooting was in fun, held, “that he had no right so to fire, whether in fun or in earnest. If the latter, it was express malice; if the former, it was implied. That sort of fun is not permitted among civilized people, and he who indulges in it is treated as though he intended the result of his act. It is trifling with justice to allow and weight to the remorse of this prisoner, after his reckless act had produced its result.” This decision, in effect, decides the case under consideration. The record shows that this unfortunate prisoner, after he came into possession of his pistol, was in the habit of flourishing it with foolish bravado and reckless disregard of the peril and consequences that might result. On the very night of this sad occurrence, lying on his bed, he had this weapon as the plaything of the hour. He was “projicking with it,” is the simple though rude expression of a witness who was present at the homicide. He pointed it at the witness, speaking of its having “three slugs apiece for him and for deceased.” The deceased was at his own home when *507•called by the witness up to see prisoner. He went across the yard to the door of his cabin, when the prisoner pointed the pistol at him and shot him. We cannot say, under the law, that 'the verdict is against the evidence. The jury have passed upon it; they have regarded the act in the light of implied malice, resulting from the reckless disregard of human life ex-hdbited. The weight of the evidence sustains the dying declaration of the deceased. The jury have so found, and on them was devolved the solemn duty of finding the facts. Upon no principle of law can we set aside their verdict; *and the lesson enforced by the administration of the law in this case may mark its influence on the future. The carrying of concealed weapons has already brought tears and trouble to the homes and hearths of many a family. This habit curses society by its pernicious influences, and we see no hope to protect the peaceable and law-abiding citizens but by inflicting the penalties consequent upon acts violative of the law, and, while clothed with judicial discretion to put aside the sword of justice, we will let all feel that it will fall on him whose act perils or destroys human life.
Judgment affirmed.