Golden vs. The State. circumstances as to create apprehension on the part of Golden that a serious bodily harm was about to be perpetrated upon him, then the killing is to be referred to this, and not to malice, and he is not guilty of murder." 8th. Because the Court erred in refusing to charge the jury as requested for the prisoner: "If the jury believe, from the evidence, that the prisoner was very drunk for the purpose, or as an excuse to take the life of Jordan, and that being in a state of intoxication, and very drunk, killed Jordan through cowardice, alarm, or fear that a great bodily injury was about to be inflicted upon him, then he is not guilty of murder." 9th. Because the Court erred in refusing to charge the jury as requested, "that if they believed, from the evidence, that Golden was very drunk, and that in this condition several persons pursued and sought a difficulty with him, it is proper that said drunkenness shall be taken into consideration, and that they shall enquire whether a man in this condition would not sooner apprehend felony or serious bodily harm or injury about to be done him, than if he had been sober, and if they shall so believe, that the killing is to be referred to this, and not to malice or any purpose to kill, and he is not guilty of murder." 10th. Because the Court erred in refusing to charge the jury as requested by prisoner's counsel: "If the jury believe, from the evidence, that the prisoner fired the pistol, and when he did so acted under reasonable apprehension that serious bodily harm or injury was about to be done him, he cannot be guilty of a higher offence than voluntary manslaughter." 11th. Because the Court erred in refusing to charge, "if the jury believe, from the evidence, that the gun or pistol shot wound received by deceased produced his death, and if the jury have a reasonable doubt upon their minds as to whether Golden discharged the gun or pistol which inflic VOL. XXV.-31. Golden vs. The State. ted the wound upon deceased, then they must give the prisoner the benefit of the doubt, and find him not guilty." 12th. Because one of the jurors, Slaughter, who tried the prisoner in said case, stated to Baily R. Gill, at the house of N. H. Tullis, on Tuesday before the trial, that he had been summoned as a tales juror in this case, and if he was taken on the jury he would hang the prisoner or stay there until the hairs of his arse dragged the ground; the said Slaughter not being a fair and impartial juror, and had prejudice and bias resting upon his mind against prisoner, and his mind was not perfectly impartial between the State and the accused, the same not being known to the prisoner and his counsel or either of them before the trial of said case: and in support of this ground, affidavits of Gill, the defendant, defendant's counsel, Solomon Welch and J. D. Walker, were filed. The Court overruled the motion, and defendant's counsel excepted, and assign error. H. HOLT; and M. BLANFORD, for plaintiff in error SOLICITOR GENERAL, OLIVER; and THOMAS SLOAN, for defendant in error. By the Court-LUMPKIN, J. delivering the opinion. The defendant in this case was convicted of murder, and having been refused a new trial in the Court below, he has prosecuted a writ of error to obtain one in this Court. Some of the grounds occupied in the rule for a new trial, have been abandoned on the argument here; and as to some of the rest, we deem it unnecessary to notice. It is but a repetition of the same objection. We propose to consider the material questions only. [1.] It is in evidence that after the homicide was committed and Golden arrested, he made his escape, and was found crouched under a fence, in the immediate neighborhood. Golden vs. The State. And this flight, it is contended, on the part of the State, indicated a consciousness of guilt. To rebut this presumption, it was proposed by the prisoner's counsel to prove that a violent assault was made upon the accused, by one of the party, before he fled. And this testimony was rejected. The point in this case is not very material any way; but as the State deemed it of sufficient importance to prove the escape, it would seem proper to allow the accused to account for it as he proposed to do; and to show that it originated in fear of injury from the surviving companions of the deceased, and not from any consciousness of guilt. At any rate, it was a proper matter to be submitted to the jury. [2.] As to the complaint against the use of the word "apprehend," we see nothing in that. "My duty," said the Judge, "is to give you in charge the rule of law, by which I apprehend”—that is, understand, conceive, believe—“ you are to be governed in the decision of this case." [3.] The next part of the charge we think is objectionable. While the learned Judge admits that it is the right of the jury to differ from the Court in its construction of the law, yet, he says to them, it should not be on slight or trivial grounds; bu tthat they should be clearly satisfied that the Court was wrong, before they did differ. Why, we respectfully submit, make an issue of this sort, between the Court and the jury? Why compel them to find that his Honor, for whom, as a man and a magistrate, the jury feel, in common with the whole country, the greatest respect, was clearly wrong about the law. The verdict of the jury should embody their opinion of the law, as well as of the facts. And they are not required to be "clearly satisfied" that the Judge is wrong. But if they entertain doubts as to the law, the prisoner is just as much entitled to the benefits of those doubts, as if they applied to the facts. It is impossible for this Court to be more explicit than it has been upon this point. In the case of Keener vs. The State, (18 Ga. Rep. 194,) the rule upon this subject is elaborated with Golden vs. The State. great care. The Court, after submitting to the jury, its view of the law a delicate duty, by the way, under the penal code-should simply say to them: "But, gentlemen, it is made your duty, under the law, to pronounce upon the law, as well as the facts of the case;" and there leave the matter. [4.] We are not clear that the Court intended to repudiate the proposition, that one may kill another against whom he has malice, and yet not be guilty of murder. The bill of exceptions, however, is scarcely susceptible of any other meaning. If he did, it was error. Whenever the circumstances of the killing would not amount to murder, the proof even of express malice will not make it so. One may harbor the most intense hatred toward another; he may court an opportunity to take his life; may rejoice while he is imbruing his hands in his heart's blood; and yet, if, to save his own life, the facts showed that he was fully justified in slaying his adversary, his malice shall not be taken into the account. This principle is too plain to need amplification. [5.] After charging as to the effect of intoxication upon the crime, the Court added, "but drunk or sober, the killing of a human being, in the sudden heat of passion, without malice express or implied, will not amount to voluntary manslaughter, unless it appear that the deceased had made some actual assault upon the person of the accused, or that there was an attempt by the deceased to commit a serious personal injury on the accused." We cannot concur in this charge for several reasons. It asserts, as it stands, what cannot be legally true; namely, that there may be murder without malice. The learned Judge, we are quite sure, did not intend to assert such a doctrine. Again, it maintains that unless the deceased made some actual assault upon the defendant, or intended to inflict a serious personal injury upon him, the homicide cannot be reduced to manslaughter. In the case of Stekes vs. The State, (18 Ga. Rep. 17,) this Court endeavored to establish, and we think successfully, that this proposition is not true. And Golden vs. The State. it may not be in the present case, even putting the most favorable construction for the State upon the testimony. Suppose no assault was made by Jordan when he seized the tumbler; still, looking at all that transpired that day, if the effect was to excite beyond control the passion of the prisoner, and yielding to the momentary impulse, surrounded as he was by his enemies, who had followed him to his place of retreat, he killed Jordan, the law, in mercy to his weakness, and in view of the provocation given, might well hold that he shot in sudden heat, and not in the spirit of revenge. [6.] As to the effect of drunkenness upon crime, we are not prepared to say that the view taken of it by the Judge, was not quite as favorable as the defendant had any right to ask. That drunkenness cannot excuse crime, the code, as well as the common law, is quite explicit. The modern decisions would seem to go to the length of holding, that the drunkenness of the prisoner may be considered on the question, whether the prisoner was excited by passion, or acted from malice. (32 Engl. Com. L. Rep. 751; 4 Humph. Rep. 141.) The Court gave to the prisoner the benefit of this doctrine; and we are not inclined to interfere with the qualification annexed to it, to-wit: that to entitle the accused to the benefit of this rule, he should strike with a weapon which he casually held or obtained, and not use a pistol or bowie knife, deliberately procured with a view to a rencontre. [7.] As to all those requests which were based upon the idea, that the circumstances which attended the killing, were sufficient to excite the fears of a drunkard, or a coward, or even of Mr. Golden, the law makes no such discrimination. They must be such as to excite the fears of a reasonable man. As to the competency of the juror, Slaughter, he will not be sworn again to try this cause; and having made so many rulings upon this subject, each depending like this, upon the special facts of the case, we deem it unnecessary to reiterate. our opinion upon this vexatious and oft-recurring topic. The conduct of this juror in lying, as he confesses he did, to |