[1.] We think the effect of the act of 17th March, 1866, Damp. Acts,239, entitled, “An Act to define the term ‘persons of color, and to declare the rights of such persons,” was to make persons of color competent witnesses in all cases, just as if they were white. In other words, that all distinction, on account of color, was done away with, so far as competency to testify is concerned ; and, for myself, I will say, I think it conferred on them the full civil rights of a citizen, and made them, before the law, entitled to all the civil rights enjoyed by white persons. We do not feel disposed to fetter the enjoyment of those rights by technical criticism, but desire to carryout in good faith the legislative will.
[2.] The Court charged the jury, “ that when a homicide is proved, the presumption is that the killing is murder, and that it was for the evidence to show justification, or to reduce the offence to a lower grade.” In Cohron vs. The State, 20, Ga. R. 760, this Court says, “ that the son was slain by the father was not denied. In contemplation of law, the homicide was murder ; and it was for the slayer, by proof, to relieve himself from this presumption, to reduce the offence from murder to manslaughter.” In Choice vs. the State 31, Ga. R. 464, the Court says: “ The State having proved the homicide, closed, as the law would imply malice from the killing.” “ When a man commits an unlawful act, unaccompanied by circumstances justifying its commission, it is a presumption of law that he has acted advisedly, and with an intent to produce the consequences which have ensued. See Dixon's case 3 M. & S. 15. Thus a presumption of malice arises in many cases. ‘ In every charge of murder,’ says Mr. Justice Foster, ‘the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner, un*81less they arise out of the evidence produced against him, for the law presumes the fact to be founded in malice, until the contrary appears.’ Foster 255; 1 Hale, P. C. 455; 1 Fast, P. C. 340.” Ros. Cr. Ev. 21. These authorities — and the number might be greatly increased — we think, fully sustain the charge of the Court as given in this case.
[3.] Should a new trial have been granted on the grounds that the verdict was contrary to law and evidence, and the weight of evidence? “The jury being made the judges both of the law and the facts in criminal cases, their verdict will not be disturbed, unless it be clear that the defendant has been wrongfully convicted.” Revel vs. The State, 26, Ga. R. 276. It is insisted that the evidence shows a case of voluntary manslaughter, and not murder. Is it “ clear that the defendant has been wrongfully convicted ” of murder ? Without critically analyzing the testimony, I deem it necessary to say only that it showed the- existence of a very bad state of feeling between the parties; and a pretty clear inference is, that the deceased was, in his own family, alone, save the society of his little daughter, Indiana. The expression used by him to Dr. Knott, when all hope of life was gone, is full of meaning. The presence of the old man, for reasons not disclosed in this record, was not wanted in that family; and this was seized as the occasion to be forever rid of him. As to the provocation given defendant by the language of deceased to his daughter, the wife of defendant, it would seem that she was a match for her f ather in the use of “ Billingsgate ; ” and this was, therefore, no such provocation as to justify or haitigate the conduct of defendant. There is no assault proved to have been made on defendant before he shot at deceased, for both witnesses say he picked up the brickbat after defendant had shot at him; and one of the witnesses says : “ Before defendant fired the first time, and after he had pulled his pistol out, I heard deceased say, ‘ I am done with it.’ ” There being no assault on defendant, nor attempt to commit a serious ’personal inj ury on him by deceased, nor other equivalent circumstances to jus*82tify the excitement of passion and exclude all idea of deliberation or malice, we think that not only is it not “ clear that the defendant has been wrongfully convicted,” but that “ all the circumstances of the killing show an abandoned and malignant heart.”
[4] As to its being a verdict founded on the testimony of “ persons of color,” all we have to say is, that the law makes them competent witnesses, and it was the right and duty of the jury to judge of their credibility. We are satisfied the jury did their duty in the premises; this was the opinion of the Court below also. But if the testimony of the colored persons were out of the case, would not the defendant be found guilty of murder ? The killing was proved by the dying declarations of the deceased; the law implies malice, and that the testimony in the cause must show a grade of homicide below that of murder, otherwise the defendant must be convicted. The negro testimony aside, where is any testimony to show any sort of mitigation whatever ? We see none, and are inclined to hold that the verdict should have been the same upon the testimony of the white witnesses alone. We think the Court did right to refuse a new trial.
