Thеre were a good many exceptions taken in this case to the instructions given by His Honor to the jury, and one in regard to the drawing of the jury. The names of four jurors on the list were by mistake of the clerk omitted to be put in thе box with the others, but upon dis-covery of the mistake they were put in and drawn. And ten jurors of the special
venire
when drawn were ordered to stand aside until the panel was exhausted, and then their names were called from thе list in the order in which they had been drawn, and were disposed of by the state and prisoner, the prisoner accepting one of them. There was no exception taken at the time, but only after the verdict. The рrisoner did not exhaust his challenges, and had the full benefit of his right of challenge to each of the jurors. He was in no way prejudiced by the irregularity, and even if he had been, his exception comes too late аfter verdict. “ When any irregularity in forming a jury is silently acquiesced in at the time by the prisoner, and especially when he partially consents for the sake of a trial to such irregularities, he waives his right to except aftеr conviction, and thereby take a double chance.”
State
v.
Ward,
During the argument of the case, there being some disagreement between the couusel as to what one Hicks, a witness for the state, had testified,he was recalled by HisPIono-r and directed to state what he had testified on his first examination. The prisoner excepted to his being recalled. The court had the right to recall him. It was the most satisfactory mode of settling thе disagreement, and could not have prejudiced the prisoner, especially as Plis Honor in his charge to the jury told them that his rehearsal of what Hicks stated was for the purpose of aiding them, but was not conclusive as to what he did say, and their own recollection should guide them.
His Honor in charging the jury, while referring to the wounds alleged to have been received by the prisoner, and proved by his father, sister and niece, told thе jury that such evidence must be taken with some degree of allowance, and the jury should not give it the same weight as that of disinterested witnesses, but the rule which regards it with suspicion does not reject it or necessarily impeach it; and if from the testimony, or from it and the other facts and circumstances in the case, the jury believe that such near relations have sworn the truth, then they are entitled to as full credit as any other witnesses. There was no error in the instruction. In the case of
State
v.
Ellington,
As to the other instructions:
There can be no objection to the first and fifth propositions. The law is correctly laid down in them.
The second, third and fourth, as abstract propositions may not be free from error, but when we consider them in their application tо the evidence before the jury, wé must hold they were not erroneous. The language of a judge in his charge to the jury is to be read with reference to the evidence and the points in dispute at the trial, and of cоurse is to be construed in reference to the context.
State
v.
Tilly,
The prisoner then asked for certain specific instructions which are numbered in the case as first, second, third, fourth and fifth.
The first in this series the judge declined to givе, and the prisoner excepted. There was no error in the refusal, for he could not consistently with the law, as we conceive it to be, as applicable to the facts in the case, have given such instruсtion.
As to the second, third, fourth and fifth instructions, His Honor gave in each case instructions substantially as prayed for. He was not bound in his charge to use the very lan
*650
guage in which the prayer for instructions was couched. “ A. charge which substantially conforms to the instructions asked for by a party is sufficient. The judge need not adopt the words of such instruction.”
State
v.
Scott,
Having disposed of the exceptions, we come now to the consideration of the question, “ What is the grade of the prisoner’s offence?”
No provocation whatever can render homicide justifiable or even excusable; the least it can amount to is manslaughter. If a man kill another suddеnly, without any, or without a considerable provocation, the law implies malice and the homicide is murder. If the provocation be great, and such as must have greatly provoked him, the killing is manslaughter only. But in considеring whether the killing amounts to manslaughter or murder, the instrument with which the homicide was committed must be taken into consideration ; for if it were effected with a deadly weapon, the provocation must be great indeed to extenuate the offence to manslaughter. Archbold’s Cr. PL, 224 Here, the provocation was not very great. The rencounter, it must be noted, was brought on by the prisoner. Pie threatened in the beginning of the quarrel to whip the deceased if he did not pay him the paltry sum of five cents. The deceased was unarmed, told the prisoner that he was his friend and did not want a fuss, and asked those present not to let him jump on him ; but the prisoner seized hold on him, struck him, engaged with him on the ground in a “rough and tumble ” fight, was pulled off the deceased, engaged with him again, and when separated the second time drew his pistol and threatened to take his life, the deceased all the while acting on the defensive, and then when he was held to keep him from shooting the deceased, as was his avowed intention, he told those holding him if they would let him go he would put up his pistol and do no more. He did put *651 his рistol in his pocket, and they let him loose. He was not then hurt; he did not complain of any hurt, only a few drops of blood were seen about his ear. He did not evince any very great excitement — certainly no frenzy — when he said let me go and I will put up my pistol. There was a great deal of deliberation in the remark, and when released he immediately followed the deceased, who had left the scene of the first conflict — no doubt to avoid the vengeance of the prisoner — came up with him on the road, and the next seen or heard of them was the sound of blows, and the deceased twice crying out, “Oh Lord, boys, hold him off me,” and when the witnesses approached them the deceased was unresisting, and the prisoner, holding him by the left shoulder, was plunging his knife into his breast, inflicting on him several fatal wounds, one of which severed his jugular vein, and another penetrаted to his heart, so deep and broad that the physician who examined them said he thrust his hand in and lifted up Ids heart. And then when the wounded man fled, suffused with his life blood fast ebbing, and fell down dead from exhaustion, the prisoner approached him, and looking on his bloody work, coolly said, “ He is not hurt; he is only drunk."
When there is such a determined purpose as manifested by the prisoner in this case, to force a fight on a peaceable and unoffending man, it is natural to look for some motive actuating his conduct. Before the first fight, while the prisoner was vaunting his determination to whip the deceased, unless he paid him that five cents “ right there,” the deceased rеminded him that “some two months before,lie (the prisoner) had been insulted at him.” It must have occurred to the deceased that the prisoner’s hostility on that occasion was prompted by that previous affront, or he would not just then have alluded to it. And so trivial was the pretext for assaulting the deceased, that it is most probable he *652 ascribed the prisoner’s conduct to the real motive, that of avenging the supposed insult.
But cоnceding there was no express malice, how stands the case? The solicitor for the state admitted there was not cooling time between the first and second rencounters, but this court is not concluded by such admission. It matters not whether there was cooling time or not, if the prisoner acted'coolly and vengefully or with a degree of violence out of all proportion to the provocation, his crime is that of murdеr.
State
v.
Chavis,
“ Where the deceased intended only a fight without weapons, and that was known to the prisоner, and the prisoner drew his knife without notice to the deceased, even if they actually engaged in the fight, the stabbing of the deceased by the prisoner would be murder.”
State
v.
Scott,
Applying the principles enunciated in these and other cases we might cite, we are constrained to hold that the prisoner is guilty of murder. There is no error. Let this be certified to the superior court of Madison county, that the sentence of the law may be carried into execution.
Pee Curiam. No error.