The bill of exceptions filed by the prisoner, presents only one question upon which there can be the slightest doubt. If counsel pray an instruction, in a voice so low, or under such circumstances, that the presiding Judge does not hear it, his omission to give it cannot be regarded as a neglect or refusal; and unless the jury were misled by the bare omission, it is not error. In this case the prisoner could not be prejudiced by it, because the rule, that the jury must be satisfied beyond a reasonable doub't, of his guilt, before they can find him guilty, .was expressly stated by his counsel, and admitted by the solicitor for the State. Moreover, it could apply only to the fact of the homicide; for if the jury found that against the prisoner, the Judge very properly said “that every matter of excuse, mitigation, or justification, ought to be shown by him.” The burden of proof in such case, being shifted from the State to the prisoner, it was incumbent upon him to establish the matter of excuse or mitigation beyond a reasonable doubt.

There is but a single question, then, presented for our decision, and that is, whether there was any testimony which the Judge ought to have submitted to the jury as tending to prove a mitigation in the character of the homicide, and thus reduce it from murder to manslaughter. In assuming that to be the sole question, we had taken for granted what the Attorney General has, with a proper degree of candor, conceded, that the emphatic manner in which the Judge asked the jury, “ what evidence there was to reduce the offence to manslaughter ?” was equivalent to telling them that there was no such evidence. See McRae v. Lilly, 1 Re. 118. State v. Noblett, 2 Jones’ Rep. 418. If there were no evidence upon the point in dispute, then it was the duty of the Judge so to declare; *274but if otherwise, then, we admit that he ought to have submitted it to the jury, without intimating to them an opinion upon its sufficiency or its weight.

In examining this question, we must constantly bear in mind that it assumes the killing of the deceased by the prisoner as an established fact, and that he must show us the testimony which mitigates his offence. This his counsel contends that he has done by the testimony, which proves that on the evening when the transaction occurred, the parties were on friendly terms 5 that no express malice was shown; that Mrs. Smithy heard a “lumbering at prisoner’s house, something like chairs that the distance between Mrs. Smithy’s house and the prisoner’s Was too great to enable the witnesses to distinguish the voice of the deceased from that of the prisoner; and that all these circumstances had a tendency to prove that there was a mutual combat, or scuffle, between the parties. It is said also, as a confirmation of this view, that, from the appearance of the bruises and wounds on the deceased, and from the fact that no blood was found on the bed, or anywhere else, except on the floor where the deceased lay, he must have got out of the bed, and been standing on the floor when he received the mortal blow on the back of his head. In considering whether these circumstances ought to be allowed to have the effect contended for, we must collate them with the other circumstances which formed a part of the same transaction, and judge of the whole together. Erom the testimony of Wilson and Allen, it appears that, late in the afternoon of the day when the homicide was committed, the prisoner and the deceased drank spirits together, until the latter became so drunk that it was thought proper to put him on the prisoner’s bed; that about an hour after dark, the “ lumbering, as of chairs,” spoken of by Mrs. Smithy, or the “ noise,” as it was called by the witnesses Wilson and Joseph Smithy, was heard up at the prisoner’s house, and then these witnesses heard the voice of the deceased crying out, “ O Lordy!” and that of the prisoner saying, “ if you don’t shut your mouth I will kill youthat Wilson, upon hearing his name called by the pris*275oner, went up to his house and found him with his coat off, his sleeves rolled up, and the shovel in his hand, and he then said, “ here is Dimond dead as hell, and I have killed him.” The next day, however, he denied that he had killed the deceased, and alleged that the deceased had killed himself, or that some person out of doors had killed him 5 but he did not on the night of the homicide, or at any other time, pretend that the deceased had made an attack upon him, or that he had got into a fight, or even scuffle, with him. He had no wound of any kind upon him, and there was nothing in the appearance of his clothes, or of the room, to indicate that there had been a mutual combat. Whatever appearance there was of wounds or bruises, was upon the deceased alone. Whatever indications there were of violence, from the outcries of the parties, were that the deceased was a sufferer, and the prisoner was beating him. Under these circumstances, could the prisoner ask that the Court should leave it to the jury to infer a mutual combat between him and the deceased, from the single fact that a noise was heard in his house ? In deciding whether there be any evidence to be submitted to a jury, the Judge must necessarily be governed by the impression which the alleged testimony makes upon his mind. The question is admitted to be oftentimes a very difficult one, but he must decide it as he does every other question which the law makes it his duty to decide, according to the honest convictions of his understanding. He cannot shrink from his duty and throw the responsibility upon the jury, by allowing them to conjecture the existence of a fact where there is no testimony tending to establish it. The same duty will, upon an appeal in such case, devolve upon the Judges of the appellate tribunal, and they must decide in like manner, upon the honest convictions of their understanding. With an earnest desire to decide correctly, we have come to the conclusion, that the prisoner has not shown us any evidence of a mutual combat between him and the deceased, and that his Honor who presided at the trial, committed no error in so instructing the j ury.

This opinion must be certified to the Superior Court, to the *276end that the sentence of the law may be pronounced upon the prisoner.

dissentients. As is said in Allen’s case, (ante, 25Y,) decided at this term, where there is any evidence, however slight, which is competent and relevant as tending to prove the fact in issue, its sufficiency must be passed on by the jury. There is no difficulty in respect to the rule; but it is sometimes very difficult to make the application, as the distinction between no evidence, and evidence confessedly slight^ is a very nice one, and the dividing line can scarcely be traced. Like light and shade which run into each other,- so as to give rise to a difference of opinion as to whether a certain point is on the bright or the dark side of the line. This has occurred in the case under consideration; my brother Judges put it on the dark side; I am convinced that it should be put on the bright side. "When the case was first opened, I thought there could be no doubt about it; but finding there was a difference of opinion I have given to the matter mature reflection, and feel it to be my duty to dissent from the conclusion made by the other Judges.

It may be that the prisoner is guilty of onui-der. I do not feel it to be my duty to say, whether, according to the testimony and matter set forth in the statement of the case sent to this Court, I think the prisoner is, or is not, guilty of murder; but I do feel it my duty to say, J thmle his gmlt has not been established aocordmg to the law of the lemd; for I think there was some evidence tending to show that the homicide was committed under legal provocation, and if so, his guilt ought to have been established by the verdict of the jury, and not by the opinion of the Jndge. I think there was not only some evidence tending to show legal provocation, but that, taking the whole matter together, it presented a case peculiarly fit to be left to the good sense of the jury. I. There was no previous grudge; the parties being but slightly acquainted.’ The deceased called to see the prisoner upon ordinary business, and there is no suggestion of -a moti/ve for the commission of murder. So, at mqst, it is a case of constructive malice afore*277thought, which is implied, under a harsh rule adopted by the Courts, ex necessitate, in the administration of the criminal law. 2. The prisoner did not strike the fatal blow while the deceased was lying- on the bed ; no blood is seen except at the place where he was lying on the floor; so, the deceased had got up from the bed. 8. There was a “lumbering- noise as of chairs;”—this tended to indicate that there was a mutual combat, or scuffle of some sort. 4. A voice is heard exclaiming “ O Lordy!” and another voice, “Damn you, shut your mouth or I’ll kill you !” The witnesses say the first voice was that of the deceased; the latter, the prisoner’s; but these .witnesses were at the house of Mr. Smithy, which, according to one witness, was distant three hundred yards; according to another, two hundred yards ; and according- to a third, a quarter of a mile. Was it not fit for the jury to inquire whether voices could be distinguished at that distance? and -whether the opinion of the witnesses in regard to the voices heard, should not be ascribed to the inferences which they formed from facts afterwards ascertained? This consideration was material; because a mistake as to the voice, changes the whole aspect of the case. 5. The first blow was a slight one with the hot shovel, on the face; so, the parties were then fronting each other, and we may assume, that as the deceased turned to retreat, the fatal blow -was given. 6. The prisoner makes no attempt to flee from justice, but makes an outcry for the witnesses, who find him with his coat off and his sleeves rolled up, and the shovel in his hand; the deceased lying on the floor with his head on the prisoner’s coat. If to these facts had been added a bruise, or even a scratch on the person of the prisoner, the chain of circumstances would have been complete to establish a legal provocation. So, there was only one Vmh in the chain missing. IIow can it be said that all the other links do not constitute some evidence fit to be taken into consideration by the jury? We may imagine the poor wretch, after ho came to himself, upon seeing the awful deed which he had committed, hesitating to criminate himself to the extent of manslaughter, and let it appear as a case of mu-*278tual combat, or to attempt to excuse himself altogether, by resorting to artifice and falsehood, and asserting that the deceased had gone out of the house and there received the fatal blow. Foolishly, and most unfortunately for him, he adopted the latter course; hence, the vicious horse is hitched near the house, and is standing there an hour after dark, and the deceased is laid on the floor, with the prisoner’s “ good coat ” tenderly put under his head. Cod knows how the homicide occurred ; but the whole transaction has a mystery around it, which, in my opinion, it was the “ proper office and yirovince” of the jury to unravel, with the humane admonition of Lord Hale: Even innocent men will, when they find themselves in difficulty, sometimes resort to artifice and falsehood.” This is illustrated by the caso of the uncle, who, being charged with having murdered his niece, and finding appearances much against him, procured a girl who resembled his niece, to personate her, and presented her to the Court and jury as his niece. The artifice was detected, and the poor man was thereupon convicted and hung. Some time afterwards, the niece made her appearance, and the mystery was explained by the fact that she had run away to be married.

Besides feeling it to be my duty to dissent from the conclusion of my brother Judges, I also feel it to be my duty to protest against the manner in which, of late years, cases are made for this Court. Why insert circumstances of aggravation % It is the duty of this Court to confine its attention to the questions of law presented by the record. Any matters of fact not necessary to present those questions, but which are calculated to paint the offense in stronger colors of horror, so far from aiding our deliberations, tend to embarrass us, by imposing the additional duty of endeavoring to free ourselves from the prejudices which such irrelevant matter of fact necessarily creates. For instance, in this case, why set out the oaths and awful imprecations used by the prisoner after the commission of the offense % Why set out, that, according to the evidence, when sober, he was a peaceable man, but when drunk, frantic and a demon ? There was no allegation of ex*279press malice. These matters were, in the opinion of the Judge, irrelevant, and not fit to be passed on by the jury; then, why set them out for the information of Judges who are to decide the questions of law ? Again, in Allen’s case, referred to above; according to the' opinion of the Judge, he was guilty of murder, upon the testimony, apart from, the idea of express malice ; then why was the case encumbered with the proof in regard to express malice 1 These two cases I refer to, merely because they are now in my mind ; but it may be proper'to say, my protest has no particular reference to the Judge before whom these cases were tried ; for I concur, with the profession, in regard to the very high estimate which is put upon his integrity and learning as a Judge.

Judgment affirmed.