The plaintiff in error was indicted for the murder of Scip. Bennett, tried and found guilty, and made his motion *35for new trial on. several grounds, which, was overruled by the court, and this decision is excepted to, and error is now here assigned thereon.
The testimony in the case shows that the accused, deceased and several others were at work on a ditch. There were words of an unfriendly character between the accused and deceased; a quarrel ensued, when the accused left the ditch and procured the handle of a pick, while he held in his left hand a long-handled shovel; when within ten or twelve feet of deceased, the quarrel going on, he threw the pick handle at deceased, and struck him on the head, inflicting a wound from which he died. The court charged upon all the grades of homicide, except that of voluntary manslaughter. He should have charged also upon this grade of homicide. The evidence in the case made it necessary that the jury should have considered this branch of homicide. If the killing was without malice, that is, it was done without a deliberate intent unlawfully to take human life, then it was not murder. If it was done without malice, upon a sudden heat of passion, then it was voluntary manslaughter; and whether it was done with or without malice depends much upon the weapon used.- If done without legal provocation, upon a sudden falling out, with an instrument not likely to produce death, then the jury might infer a want of malice; in such case, it would be voluntary manslaughter. See Foster’s Crown law, 291; 61 Ga., 380; Roscoe’s Crim. Ev., 695; 1st East’s P. C., 236; 1 Russ. on Crimes, 783; 18 Ga., 17; 30 Id., 70. But if the killing was done upon a sudden heat of passion, provoked bywords and abusive language used by deceased, with a deadly weapon, it would be murder, because the weapon used would show intent on the part of the accused to take human life. At all events, these questions should have been put fairly before the jury by the court, so that they might determine whether the accused was guilty of murder or voluntary manslaughter.
We express no opinion upon the facts of this case, as *36there will have to be another trial of the same, nor is it necessary to notice other assignments of error in the record, as we presume that they may not occur on another trial.
Let the j udgment of the court below be reversed.
Hall, Justice, concurred, but furnished no written opinion.