dissenting. I can not agree to, the ruling of the majority as contained in headnotes 4-(n)-(&), and to the judgment of reversal in this ease. A Avitness for tbe defendant Avas permitted to answer that he “had been convicted of cow-stealing.” The same witness was asked by counsel for the State whether he was not then under “ indictment in this court . . for assault with intent to murder.” T.o this question the witness answered that “he was under indictment in said court under a prosecution by one Mr. Johnson for sliooting last spring.” The objection urged to these questions and answers Avas simply that there was higher and better evidence of tbe facts sought to be proved. In view of tbe answers made and tbe objection urged, I do not think the verdict in this case should be set aside.
I dissent from the ruling of the majority contained in the fifth headnote, because, as I construe the charge, the court was merely emphasizing the elements necessary to constitute the offense of *378murder. The language used by the court may not be entirely accurate, but it was certainly not harmful to the defendant for the court to instruct the jury that before they could convict the defendant of the crime of murder it must appear that the killing was “both malicious and wilful.” If this charge is erroneous for any of the reasons assigned, the error is not of such character as to require another trial of the case.