delivered the opinion of the court.
This is an appeal from adjudgment of the Madison circuit court by which, in conformity with the ver*621diet previously rendered, Daniel Rapp was sentenced to be confined in the jail and penitentiary of this commonwealth, at hard labor, for the space of one year. The crime charged in the indictment, and of which he was found guilty, is that of felonionsly, wilfully, and maliciously shooting and wounding David J. Rowland with a pistol, and with intent then and there to kill him, but of which wound Rowland did not die.
mm’aThCharges the ^offense da2ii sec, art. 6, p"3<> «51, that is, umliciousiy shootJoltiT/’TiVoonsiitute this of-such,' that& in ensue'chíwouM have been murbe’such as woulJ m,t b® death ensued, ^vonndíng ’be not in sdf-dein a sudden''affpy. «r insu.tden heat and passion, with* nial ¡cauris not felony preseribtiLb above, but * wisdemcanor defined by art. 17, chapter 28, f6™' tion defines a death "were ’ to e"suc; is “*n' slaughter. The two sections rethSnionth^tablished between 'manslaughter!’The indictment charges the offense described in the 2d section of the 6th article of chapter 26th of the Revised Slatules, page 251, and the accused was convicted and sentenced under that section. The offense is that of malicious shooting with intent to kill; and as malice must exist to constitute the crime, it seems to follow, and it is our opinion that the case under this section of the statute must be such as would be murder if death had ensued. And if the case be such as would not be murder had death ensued, that is if the wounding be not in self-defense, but done in a sudden affray or in sudden heat and passion, without previous malice, it is not a felony punished by the section referred to but is a misdemeanor defined and punished by the 1st section of article 17, chapter 28th of the Revised Statutes, page 264. This section in our opinion defines a case which ii death were to ensue, would be man-i » rrxt i _ slaughter, lhus the established distinctions between murder and manslaughter furnish the true grounds for discriminating between the offenses denounced and punished by the two sections referred to.
In view of these grounds of discrimination we are „ . . , , , , , . „ oi opinion that the sudden heat and passion referred to in the section last cited,in defining the misdemeanor therein described, must be a passion caused by such provocation as in case death ensued from the wound would reduce the offense from murder to manslaughter. , , , . i,. And mere words or jestures though they may excite passion do not constitute such provocation as will of itself extenuate a homicide committed with a deadly weapon, and make it manslaughter. This position is *622laid down in all the elementary hooks which we have seen and is sustained by the current of adjudged cases, and is too familiar to require a reference to authority.
2. Tim sudden heat and passion referred to in article 17, chapter 28, in describing the m i s d e meanor, must be a passior. caused by such provocation, as in case death ensue from the wound would reduce the offense from murder to manslaughter. Mere worths or gestures, tho’ they may excite passion, do not constitute such provocation as will, of itself, extenuate a homicide committed with a deadly weapon, and make it manslaughter. 3. Tf, from all the circumstances attending the infliction of ! ~ jury should be-j,'8^8 and lmd reasonable grounds to believe that the party wounded ce«dimmediate‘J}8 bodily harm upon him in his hand', and ^at Jj8 prevented by f"nseacas°f was theninimpowdJ excusable on úfense* °f*622With these preliminary remarks not inapplicable to the case before us we proceed to state briefly the general facts of the case and the questions made on the trial. It appears that Rowland having been informed of- certain conduct of Rapp which he deemed injurious and offensive to himseif, called Rapp into his store, and placing himself in a position nearer to the front door than that occupied by Rapp, charged him with the offensive acts and upon his denial called him a liar and used other offensive language, and as he himself says, told Rapp that if he did the like again he would cut his ears off and then making a movement (the direction of which he describes by reference to objects in his store) stopped as he says with his pocket knife half or entirely open, and said “this is the knife I will do it with” being then from five to seven feet from Rapp who drew pistol and shot him in the cheek bone, &c., but he says he made no motion or attempt to use the knife, and did not by word or act indicate an intention to use it at that time, or at any time, except upon the contingency mentioned.
Two witnesses for the defense speak of the threat and attitude of Rowland — one of them says that coming in front of Rowlands store be saw him with an open knife in his hand and raised above his head, and heard him tell Rapp he was a liar and he had caught him in it, and he would cut his ears off The other witness also states the threat of Rowland, with an open knife in his hand, and without any contingency. He also speaks of the movement of Rowland and his stopping before uttering the threat. But how long he stopped before the pistol was fired is not stated by any one.
This court is of opinion that even if Rowland did not in fact intend to proceed immediately to cut off Ilapps ears or otherwise to use his knife, in inflicting bodily harm upon him, still if from- his offensive Jan*623guage, his ¡movements, his threats, his attitude, and proximity and from the fact that he had called Rapp into his store and after taking his position immediately commenced his reproaches, terminating with a threat, and from ail other circumstances developed by the evidence as existing at the time, and which may * 1 . (> . . . . . , , , * bear on the question oí intention, the jury should be of opinion that Rapp did believe, and that he had’ reasonable ground to believe that Rowland intended to proceed immediately to the infliction of bodily harm upon him with the knife in his hand, and that he would do so unless prevented by such act of -self-defense as was then in the power of Rapp, then the shooting by Rapp was excusable cn the ground of self-defense and apparent necessity. But if he had not reasonable ground to apprehend immediate violence to his person by Rowland by the use of the knife, then his act of shooting and thus aiming at the life of Rowland was not only, not excusable as being' in self-defense, but it was not done under such provocation as on the ground of heat and passion would make it a misdeA , , meanor instead of a felony.
4. it was cornpetcnt for the defendant; in* dietedforshoouwifi'" bueni^to hill, to prove pmon °wound-®.d> wIl° ¶8?in the defendant enterecTit^fhis father^ ant into the stor,®>) hut. irumediately ran up stairs and turned'131'about tcle" h¡s father with apisud. which liefenJant, peered had bein' leaded some davs before when he made a contingent threat to shoot defendant, of •whiuh defendant had been notified. This evidence would tend to elucidate the motives and acts of the parties.*623But this court is equally divided upon the question whether the instructions of the circuit court as contained in the qualification to the instructions given for the defendant do or do not put the case before the jury upon the principles above cited. There-cannot therefore be a reversal on account of this qualification. With respect to which we remark further that the definition of an assault therein contained is technically correct.
We are of opinion however that the court erred in refusing to permit the defendant to prove that Hugh Rowland, a son of the party wounded, who was in the store when his father and Rapp entered it, but immediately ran up stairs and returned about the time of the shooting, with a pistol which he aimed at Rapp and snapped at him, had had his pistol loaded a few days before and had then made a contingent threat v * to shoot Rapp, of which Rapp was notified before the *624interview with Rowland in which he shot him, This evidence would tend to elucidate the motives and acta of the parties. And its exclusion was an error prejudicial to the accused.
Wherefore the judgment is reversed and the cause remanded for a new trial in conformity with.the principles of this opinion.