concurring.
I yield a reluctant assent to the affirmance of the judgment .refusing the grant of a new trial in this case. The case is clearly distinguishable from Hill vs. The State, decided at the last term. There, Mrs. Hill was introduced to the unfortunate man killed, as a common prostitute and among prostitutes ; she was neither assaulted with intent to ravish her nor was she seduced by Simmons ; she had .fallen before he knew her, and the purity of her wifely life had been previously stained by illicit intercourse with others. Of all this Hill had been informed, and but for an'infatuatio.n approaching lunacy, which afterwards consigned him to the asylum from the penitentiary, he must have believed it. Yet, he took the law into his own hands, and months after the criminal intercourse of his wife with Simmons, after having repeatedly sought him armed for revenge, deliberately, and without warning, 'shot him down. Simmons formed the acquaintance'of Mrs. Hill, and had carnal knowledge of her, at public places of resort where lewd women congregated, and was wholly ignorant that she was a married woman until long after their intimacy had existed.
*100In the case at bar, Mclver, being related to the family, had access to the hearthstone of Stewart, and there and there only deeply wronged him. Not a breath of suspicion had soiled the purity of Mrs. Stewart before his assault upon her. According to her statement to her husband, he attempted to use force upon her; according to his own, he consummated his villainy by seductive appliances used as much by her as by him. He was either a ravenous beast of prey, determined to gloat his appetite on forbidden food, or a serpent coiling himself in a garden of peace and purity, and leaving the slime of his own corruption in the trail he left. In either event the husband was innocent, and was more deeply wronged than it is possible otherwise to wrong a man, a neighbor and a relative. Mclver was warned to leave the city of Brunswick. His own near relative offered to furnish the money to send him away ; but he yielded to the advice of young men like himself, and imitated Solomon’s son in scorning the counsel of gray hairs and sober minds. The result was that, goaded to madness by the persistent and insulting presence of the man who had thus wronged him, Stewart shot him, and he narrowly escaped with life. Just before the rencontre, Stewart received an invitation to„a ball, addressed to himself and ladies, signed by Mclver, as one of the committee of invitation, and this seems to have been the hair that broke the camel’s back. On the spur of this insult, added to injury, the attack' was made and the shot was fired.
Was he guilty of an assault with intent to murder ? Would it have been murder had Mclver fallen to rise no more? Mark it. The question is not was he justifiable, but was he guilty of assault with intent to murder, or of assault and battery ? Would the crime have been murder had Mclver been slain, or would it have been voluntary manslaughter? Perhaps, as my brethren and the court below all think, it would have been murder, but the margin is very narrow, and if passed at all it barely crossed the line.
*101If the act was done under an uncontrollable fit of passion immediately on the receipt of this last insult, and before reason became again enthroned, it would have been manslaughter; if from a spirit of revenge and- with deliberate purpose to avenge himself previously entertained, and using this letter of invitation as a pretext or excuse to carry out a prior intention, then it would have been murder. I repeat, to my view, the'line that separates the two crimes is very dimly defined under the facts which this record discloses — and I was myself much disposed, had there been any clear error of law, to grant the outraged husband another hearing. There are two inaccuracies in the charge of the court, which, had I sat here alone, I should have seized upon as sufficient to grant that re-hearing.
The one is the remark of the court immediately after the charge touching the prisoner’s statement, which is, itself, clear and full, to this effect, “but sworn testimony you cannot captiously reject unless impeached,” thereby possibly impressing the jury that they should give to sworn testimony greater weight than to the prisoner’s statement, which is contrary to the tenor and spirit of the act of 1878. Perhaps, uowever, other portions of the charge may have remedied the effect of this remark and healed it, if it did not extract its sting.
The other is the charge which seemed to limit Stewart’s defense to the first time he met Mclver after his wife had made complaint to him. That this is the general rule, there can be no doubt, for “if uncontrollable rage” is to unbalance reason at all, it would be on the first sight of the ravisher or seducer, but in this case I doubt its application. . Stewart did not wish to shoot Mclver. He wished him to leave the community, and not stand there a constant reproach to his eyes and stench under his nostrils — and when first they met, Mclver was about to leave on the cars, and did leave in a minute or two thereafter ; and then Stewart had not heard from the lips *102of his wife the entire affront. Besides, it should be borne in mind that the immediate, proximate cause of the shooting was the renewal of the affront in the invitation to the ball, which makes this case not unlike the case of Riggs vs. The State in 29 Ga., except that Mrs. Stewart was not ¡present.
It is true in this, as in the other charge criticised above, there may be modifications in other parts thereof; and the charge, as a whole,“was evidently designed to be, and in the main is, a fair exposition of the law.
I remark further, that though the shooting occurred some weeks after Stewart got information of his first great wrong, Mclver was much of the time absent from Brunswick, and was warned and urged to keep away. And “the general countenance of 'the case,” to use a striking expression of my late esteemed associate, Judge BLECKLEY, is such that I should have been better pleased had my brethren agreed to have it again investigated. Deference, however, to their judgment, and the deep consciousness that men are too apt to forget the injunctions of the Almighty, “vengeance is mine, I will repay, saith the Lord,” and to take the redress of the wrongs done them out of the hands' of the courts and avenge themselves, lead me to give a reluctant acquiescence to the judgment of affirmance.