1. It is not our province to say whether this defendant be guilty of the offense for which he has been convicted, but under the circumstances we think he was entitled to the charge asked. The crime of assault with intent to murder *432has, as one of its essential ingredients, that state оf mind which the law callé malice, to-wit: the deliberatе intent to kill in a bad spirit. If the slayer be provoked by an assault, if he have his passions aroused by a blow, thе law excuses his heat, and though he may not be justified in the killing, the law deals with it as manslaughter and not murder. If the blows in this case were given under such circumstances, as if dеath had ensued it would have been manslaughter only, this was not an assault with intent to murder. We do not express any opinion as to what the jury ought to have found, nor do we say that this or that witness was entitled to credit. But under thе testimony of one or two of the witnesses we think the jury might fairly have thought, if they gave full credit to these Avitnesses, that the prisoner when he did this act was in fear of his life. When we look at the facts as they are told now, we can draw far more accurate conсlusions than it is possible for one to do with his blood up in the midst of a conflict or just .as it ceases, and we think thе court should have charged as requested. The prisoner was entitled to have charged, on requеst, any principle of law material and pertitinеnt to the case, in any view that, under any of the evidence, may be taken of it. The burden of proof mаy be one way, yet if there be any evidence оn a particular line before the jury, he has a right tо have the law in that aspect of his case, if hе asks it, charged by the judge to the jury.
2. We think there was no error in admitting the statements of the prisoner next day. Thеy indicate strong malice against his opponеnt at that time, and furnish a fair ground for an inference оf malice at the time of the rencounter. Statements, both before and after, are indications showing the condition of the mind at the time of the act, and are circumstances having more or less weight аccording to the time of their utterance and thе circumstances of the case. We think these stаtements were not too long after. The time that had elapsed weakens their force, but we think them сompetent to be introduced, leaving their weight tо the jury.
3. We have discussed this point in Wair’s case at this term. *433We think the provisions of the Code cumulative оnly, and that the old rule is still of force when the demand is mаde, or at the option of the judge without a demаnd. It can do no harm to the cause of truth, and the inсonvenience of it may well be borne for the facilities it affords to prevent fraud and tampering with witnesses.
