dissenting.

I am unable to see how, under the law applied to the facts of this case, disclosed in the record and fully reported by the reporter, the case can be reduced from murder to-voluntary' manslaughter. There was no attempt by the person killed to hurt the defendant, no assault upon him,. nor anything equivalent thereto, “to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied.” The only provocation was by the words in regard to the support of defendant by his father-in-law, which the law declares “shall in no case be sufficient to free the person killing from the guilt and crime of murder.” Section 4325 of our Code absolutely concludes the case. There was proof of express malice. The difficulty of the Saturday before, referred to by the slayer at the time of the killing, shows the malice of the defendant rankling in his breast two or three days.

The case was tried upon the issue whether or not the killing was intentional; or, in other words, was with a weapon likely to produce death. The jury passed on that issue, and, in my judgment, found on it the only verdict possible under the facts. The man killed never raised his head from his work in the ditch; the slayer got up out of the ditch, where he too was at work in another -part of it, got a pick-handle from a tree against which it was left leaning, walked deliberately to where the killed • was at work, until he got over him in good hurling distance from the top or edge of the deep ditch, thence hurled this pick-*37•handle, proved to be a weapon likely to produce death, upon the back of the head of the killed, who showed no fight, and offered no resistance, and hurled his soul into eternity. If this be manslaughter, voluntary manslaughter, what is murder ? A j udgment that the facts can make it less than murder, under -any possible construction of them, as between it and voluntary manslaughter, is a naked . repeal .by the j udiciary of the law of the state in section 4325 of the Code. Having no disposition to repeal that law, and no poAver to repeal it, if so disposed, I am constrained to dissent from the judgment of the majority of this court, and to express my concurrence with the view of the care taken by the able and experienced circuit judge who presided on the trial. No request was made of him to give the jury in charge the law of voluntary manslaughter. No idea that voluntary manslaughter was in the case appears to have been in anybody’s mind pending the trial; it was the clutch of a dying man at a straw, after -hé had caught at everything else during the trial; that clutch, in the persistent grasp of his able and energetic counsel, has magnified the straw into a life-preserver, so .far as this conviction by this jury has been overturned; and thus kept above water for another struggle, he may reach the shore of safety.

Whilst my duty to the law, as I understand it, will not permit me to look at the straw through such a magnifying glass, but to see it only with the naked eye of unexaggerated truth, and descry what the visible thing actually is in its insignificance, I admire the persistence of that intellectual 'force which has worked a marvel so great, and decline to comment further on the facts, lest I might say something which might deprive the defendant of that fair and unprejudiced new trial to which this court decides he is entitled.

That trial will be upon facts de novo; and upon them and any new facts, togetner with such light as they may throw upon the old, of course I express no opinion, I *38look only on this case now made on this record, and hold that upon it the judge of the superior court committed no error in overruling the motion for a new trial.

The plaintiff in error was indicted for the murder of Scip. Bennett, tried and found guilty, and made his motion *35for new trial on. several grounds, which, was overruled by the court, and this decision is excepted to, and error is now here assigned thereon.

The testimony in the case shows that the accused, deceased and several others were at work on a ditch. There were words of an unfriendly character between the accused and deceased; a quarrel ensued, when the accused left the ditch and procured the handle of a pick, while he held in his left hand a long-handled shovel; when within ten or twelve feet of deceased, the quarrel going on, he threw the pick handle at deceased, and struck him on the head, inflicting a wound from which he died. The court charged upon all the grades of homicide, except that of voluntary manslaughter. He should have charged also upon this grade of homicide. The evidence in the case made it necessary that the jury should have considered this branch of homicide. If the killing was without malice, that is, it was done without a deliberate intent unlawfully to take human life, then it was not murder. If it was done without malice, upon a sudden heat of passion, then it was voluntary manslaughter; and whether it was done with or without malice depends much upon the weapon used.- If done without legal provocation, upon a sudden falling out, with an instrument not likely to produce death, then the jury might infer a want of malice; in such case, it would be voluntary manslaughter. See Foster’s Crown law, 291; 61 Ga., 380; Roscoe’s Crim. Ev., 695; 1st East’s P. C., 236; 1 Russ. on Crimes, 783; 18 Ga., 17; 30 Id., 70. But if the killing was done upon a sudden heat of passion, provoked bywords and abusive language used by deceased, with a deadly weapon, it would be murder, because the weapon used would show intent on the part of the accused to take human life. At all events, these questions should have been put fairly before the jury by the court, so that they might determine whether the accused was guilty of murder or voluntary manslaughter.

We express no opinion upon the facts of this case, as *36there will have to be another trial of the same, nor is it necessary to notice other assignments of error in the record, as we presume that they may not occur on another trial.

Let the j udgment of the court below be reversed.