1. The objection is not that the Court permitted a nolle prosequi to be entered, but that one juror having been sworn before this was done, the same panel with that juror was again put upon the defendant, after the finding of a new bill. We can see no possible hurt to the defendant in this. He had expressed himself content with this juror and had chosen him. He was only given a second opportunity to pass upon him, and of this surely he could not complain. But the juror was challenged by the State, and the objection is, that as the defendant had indicated his willingness to accept him, the State thereby had an advantage, and from that notice made the challenge. The meaning of this is, that the defendant unfairly lost a juror whom he wished to try him, and whom he had once selected. But where was there any possible remedy for this? Was the nolle prosequi rightly entered? That is taken as granted, for no exception is made of it. Nor is the exception that the State was permitted to challenge the juror when he -was again called, on the second proceeding, to select a jury. When the bill was disposed of by the nolle prosequi, all that had been done, as to the jury, fell with it, *560and the right of challenge, both as to the State and the defendant, was the same as if the former proceedings had not been taken. It does not appear that other jurors who had been challenged by either side were on the array, and no question of that sort arises. If the juror who had been once sworn had been left off the array, the defendant could have been in no better condition; indeed, in not as good. For if he wished to have that juror, and he was not on the panel, he could then have had no chance. As it was, he did have the chance, provided the State did not challenge, and if it did challenge, then the State was charged with it, and had one challenge less thereafter. This was no damage to the defendant, and he could not possibly have been relieved from the position, except by denying the right of the State to challenge under the circumstances. This he did not do.
2. The Court charged the jury that, “malice is presumed from the killing, and you should find the defendant guilty, unless he has shown by proof such facts and circumstances as will make the killing justifiable or reduce it to manslaughter.” The objection to this charge is, that as the defendant introduced no evidence, it denied him the benefit of such facts and circumstances as were proven by the State’s witnesses; that it limited him to what he must prove by witnesses introduced by himself. Had the jury found a verdict for murder, there would have been force in the objection that the jury might have been misled by the charge. But, as stated by the Judge, in passing on the motion for a new trial, “although the charge was not strictly correct, the verdict shows that the jury did not put upon it the construction claimed by prisoner’s counsel. The fact that they found the defendant guilty of voluntary manslaughter is evidence that they construed the charge properly, to-wit: that when the killing is proved to have been done by the defendant, malice is presumed, and he should be found guilty of murder, unless the proof discloses such facts and circumstances as will reduce the killing from murder to manslaughter, or'show it to be justifiable.” "We think the *561Judge is correct in this, and that the jury was not misled by the charge.
3. The exceptions made to the charge, on the ground that there was error in it as to the matter of the seduction, or attempted seduction of defendant’s wife, might be disposed of by a general remark, to-wit: that the evidence did not call for any special charge on that subject, as made and complained of. Whether the Court was right or wrong, is immaterial in this case. There was no evidence whatever that the deceased had seduced defendant’s wife, or that defendant killed him to prevent the seduction. Not one word passed between them about it at the time of the killing. A quarrel had arisen between them, and was being carried on furiously, when defendant shot deceased, but nothing was said by defendant, or any one else, as to an outrage, or insult to his wife. One of the -witnesses says, “a few days before, defendant’s wife told him (defendant) that deceased had offered her $5 00 to let him come to see her as a sweetheart.” But if this was so, it did not seem to produce much effect on the defendant. He came into the house where deceased was, was friendly, dried his gun and put it up, and, though deceased was acting very provokingly, did not get “mad” until after deceased had gone out of the house, and a quarrel arising, dared the defendant out. It was not until then that the defendant became enraged, and the fatal rencontre took place. The evidence does not show that the virtue of tire wife, or her attempted seduction, or what she may have said to the defendant, had anything to do with the killing. It would be going very far for it to be laid down as a rule of law that a man who has been told that improper proposals have been made to his wife, has, therefore, the right to slay the person who is charged with having made them.
4. As to the exception that the verdict is against the evidence, etc., the Judge who tried the case, after a review of the whole matter, refused to interfere. Were it not for the fact that the deceased dropped his axe before the shooting, and that defendant seized it after he had shot down the deceased, for the purpose of using it on him, I will admit, for myself, *562that the appeal for a new trial would be very strong; but the Judge below having very strongly approved the verdict, we let it stand.
