If the prisoner discharged the gun on *612 purpose, it is murder; if it went off accidentally, as if by a jerk or a sudden motion in a scuffle with the deceased, wbo had interfered to prevent him from going out of the house, or pushed him back to prevent his shooting Harris, it is not-murder. The offence cannot be murder unless there was an intent to kill, although the killing without an intent to do so, would not be homicide by misadventure, and excusable, but would amount to manslaughter, because of the prisoner’s violence and want of care.

There is error in the instruction, “ If one is about to do ah unlawful act,- and a third party interferes to prevent it, and is killed, it is murder.” State v. Benton, 2 D. &. B. 196, is relied upon to sustain the instruction. In that case the intention to kill was manifest. There the Court use this strong language: “ The prisoner turned from the first victim of his contemplated vengeance, advanced, and, without a word of warning, plunged a knife into him, and killed him: it is murder.” The ruling in this case is thus stated in Battle’s Digest 687: “If one man assails another, and is about to commit an unauthorized act of violence upon him, and a third person interferes to prevent it, and is killed by the assailant, it is murder.” This is accurate in respect to the facts of that case,’’and the error of his Honor is, in laying it down as a general principle, applicable to a case where the facts may be different in regard to the very gist of the matter — to-wit, an intentional killing. An intent to kill or do great bodily harm, is necessarily involved in the idea of murder: State v. Hoover, 4 D. & B. 268; Foster 219.

So the question is, Was there any evidence to raise the point, that the prisoner did not discharge the gun on purpose ? The testimony of Dr. Williams furnishes “ natural evidence ” tending to show that the gun was not discharged in the usual way — the range of the shot coursing upwards from the lower jaw-bone, and lodging in the lobe of the brain, *613 two inches above the burr of the ear, the parties standing' on the floor. Taking this to be the fact, it was for the jury to say how far it contradicted the evidence on the part of the State, and whether it did not lead to the conclusion, that the parties were in a scuffle, the breech of the gun lower than the muzzle, and that it went off by accident. In this connection the remarks of his Honor as to the effect of shot encountering a hard substance, would have been pertinent, not as being Ms opinion, for none but experts are allowed to express opinions in matters of scientific speculation, but as a subject to be considered by the jury in coming to a conclusion in respect to the facts of the case, in connection with the evidence as to the deceased having pushed the prisoner back from - the crack, while he had the gun in his hands, his exclamation “Lor! Mary is dead!” and all of the other testimony and circumstances of the case.

A decision of the case as now presented, does not call for further comment. On a second trial the facts may be more fully developed. Should the case come to the Court again, the facts and the rulings of his Honor should be more satisfactorily set out.

Pjek Curiam. Venire da novo.