(after stating the facts.) The remarks of counsel assisting in the prosecution of appellant were improper, but, as they were immediately withdrawn, we are of the opinion that they were not of such character as to produce permanent prejudice in the minds of the jury, notwithstanding theifi withdrawal. This holding does not conflict with the rule announced in German-American Insurance Co. v. Harper, 70 Ark. 305. Each case, as shown there, depends upon its peculiar facts. ' Here, even if it had been true that the shooting of Wallis resulted in his death, which the statement indicated, still the jury knew that appellant was only on trial for an assault with intent to kill; they knew that appellant could not be punished for any other crime under the charge being investigated. They were cognizant of all the facts of the alleged assault, and must have known from these that the attorney was but expressing his own opinion in designating the crime murder, even if death resulted from the assault. The remarks having been withdrawn, the jury had no right to assume as a fact proved in the case that Wallis was killed by appellant, much less that Wallis was murdered by appellant.
The twelfth and fourteenth instructions, taken alone, would be erroneous, because they make appellant’s guilt depend solely upon the question of whether or not he intended to kill Jim Wallis at the time of the shooting, whereas that was not the only question. For, even though appellant did intend to take the life of Wallis at the time of the assault, still he would not be guilty of an assault with intent to kill if the assault was the result of a sudden passion caused by a'provocation apparently sufficient to make the passion irresistible. An intent to kill is not the only ingredient of the crime. There must be malice, either expressed or implied. The proof must show that it would have been murder had death resulted from the assault. McCoy v. State, 8 Ark. 451; Cole v. State, 10 Ark. 318; Lacefield v. State, 34 Ark. 275; Davis v. State, 72 Ark. 569. But, when the above instructions are taken in connection with the instructions given at the request of appellant, we hardly think the jury could have been misled by them. The jury would not have been warranted in taking them independently as a statement of the law of the case upon which the guilt or innocence of the prisoner turned. For in instructions numbered one, two and three given at the instance of appellant, which may be taken as additions or qualifications to instructions numbered twelve and fourteen supra, the court makes it clear that if the assault was the result of a “sudden heat or transport of passion and without malice,” the appellant would not be guilty of an assault with intent to kill. The instructions must be, considered as a whole, and, when so considered, we are of the opinion that they were tantamount to saying to the jury that while it was necessary to show a specific intent to take life in order to constitute the crime of an assault with intent to kill, it was also necessary to show that the assault was made with malice, or deliberation and premeditation, and hence not the result of a sudden passion caused by a provocation apparently sufficient to make the passion irresistible. It is apparent that the court did not undertake to compass the law of the case in instructions numbered twelve and fourteen given at the instance of the State. These, which refer to the necessity of showing a specific intent to take life in order to constitute the offense charged, must be taken and considered in connection with the instructions asked by appellant, which tell the jury that if the assault was made without malice, or without deliberation and premeditation, being the result of passion aroused by a provocation apparently sufficient to make the passion irresistible, the appellant would not be guilty of an assault with intent to kill. The twelfth and fourteenth had reference to the question of intent to take life, the others had reference to the presence or absence of malice or deliberation and premeditation. Taken together, they contain no prejudicial error. Beene v. State, 79 Ark. 460. The instructions to which objection was made and others, when considered as a whole, fairly presented the law of the case. See Taylor v. State, 73 Ark. 158; Thomas v. State, 74 Ark. 431. Those given at appellant’s request can not be approved as precedents. They are more favorable to appellant than the law warranted, but of that he can not complain. Those asked by appellant, which the court refused, were not correct statements of the principles of law applicable to the facts of this record. A majority of the court are of the opinion that, even if there was error in the instructions, it was not such as to mislead the jury under the evidence.
There was ample evidence to sustain the finding of the jury that appellant assaulted Wallis in a spirit of revenge, under circumstances’ that were not apparently Sufficient to arouse the passions of a reasonable man to an extent irresistible. He loaded his gun after seeing the young man kissing his daughter and followed, him out of the yard, called him back, so that he might be closer, and shot him, as he says, intending to hurt him, but not to kill him. But the jury found against him on the question of his intent, and, considering the nature of the weapon, the kind of load it contained, the close range at which it was fired, and the character of the wound, the jury was warranted in finding an intent to take life. Appellant says when asked what was his.object: “I could hardly tell you; only I wanted to have some revenge.” So far as the evidence in this record discloses, the jury were warranted in finding that the purpose of young Wallis was not, as appellant imagined, to “intrude upon the virtue” of his home, not to rob his daughter of her chastity, but to make her his wife. This both the statements of the young lady and of Wallis tended to show was the fact. They knew most about it, and there is nothing to the contrary shown. Appellant did not act as a reasonable man should under the circumstances. See Hoard v. State, 80 Ark. 87. For inquiry of either of the young people at that time doubtless would have disclosed the true status of their social relations, and prevented his imagination from conjuring the evils which appellant supposed existed in the mind of young Wallis toward his daughter, and which he says led him to commit the unfortunate deed which has deprived him of his liberty. The jury concluded that the provocation was not apparently sufficient to make the passion irresistible, and upon the testimony of appellant himself and the other evidence we are of the opinion that their conclusion was amply supported by the proof.
Judgment affirmed.