after making the foregoing statement, delivered the following opinion of the court:

The questions raised by the assignments of error will be disposed of in their order as stated below.

[1] 1. Was there any evidence before the jury to support their verdict of murder in the second degree, which involves the guilt of malice on the part of the accused?

It has been long settled that where a homicide is committed in the course of a sudden quarrel, or mutual combat, or upon a sudden provocation and without any previous grudge, and the killing is from the sudden heat of passion growing solely but of the quarrel, or combat, or provocation, it is not murder, but is manslaughter only — voluntary manslaughter, if there be no further justification, and involuntary manslaughter if the killing be done in the commission of some lawful act, such as in justifiable self-defense. Byrd’s Case, 89 Va. 536, 16 S. E. 727; Read’s Case, 22 Gratt. (64 Va.) 924.

[2, 3] Where a homicide is committed under such circumstances, without any previous grudge, even if the killing be not done in self-defense, it has also been long settled that the test, of whether the killing is from the sudden heat of passion aforesaid, is found in the nature and degree of the provocation and the- manner in which it is resented. Read’s Case, supra, 22 Gratt. (63 Va.) 924. As to the nature and degree of the provocation, where it is in fact resented, it is only where the killing is “without any or upon very slight provocation,” that malice may be inferred from the mere *696fact of the killing, and that the slayer may be found guilty of murder. That is to say, in such case, as in others, malice, and hence “murder, is presumed from the fact of killing, unaccompanied with circumstances of extenuation” (Lewis’ Case, 78 Va. 732) ; but, where there is provocation which is more than “very slight,” such presumption does not arise. (Hill’s Case, 2 Gratt. [43 Va.] 599; Wills’ Case, 32 Gratt. [73 Va.] 932; Wright’s Case, 75 Va. 914; Gray’s Case, 92 Va. 772, 22 S. E. 858; Murphy’s Case, 23 Gratt. [64 Va.] 960; Jones’ Case, 100 Va. 842, 41 S. E. 951; Read’s Case, 22 Gratt. [63 Va.] 924; Horton’s Case, 99 Va. 848, 38 S. E. 184.)

[4] Now in the case before us there was no previous grudge, the homicide was committed in the course of a sudden quarrel, in mutual combat, upon a sudden provocation, which was unquestionably resented, and the provocation, was more than “very slight.” Whether the evidence shows that the killing was done in justifiable self-defense, it is unnecessary for us to decide; but it was certainly accompanied with such circumstances of extenuation that malice, and hence murder, could not be presumed from the fact of the killing. There was no other evidence of malice in the case. This being so, there was no evidence whatever before the jury to support their verdict of murder in the second degree.

[5, 6] It is urged in argument in behalf of the Commonwealth, that the dying declaration of the deceased, “that he was playing; that he was not mad * * * and that he did not know what made (the accused) shoot him,” evidences that the provocation was very slight. But such declaration is confined to a statement of the inner consciousness and condition of mind of.the deceased. It does not state what his conduct and outward demeanor were at the time. Hence, such statement is not in conflict with the testimony of the witnesses for the Commonwealth who were at the scene of the tragedy, which, in entire accord with the tes*697timony for the accused, shows that the actual conduct of the deceased and his outward demeanor, which resulted in the affray and the fatal shooting, gave no indication that he was “playing,” or that “he was not mad,” or that he gave the accused no apparent cause to shoot him. On the contrary the reasonable deduction which the accused was justified in drawing from the actual conduct of the deceased at the time, as such conduct is shown by the evidence as aforesaid, was that the deceased first persisted in his insulting conduct towards the young lady, Eula Ray, and, when prevented from continuing in such conduct, followed that by a violent assault upon the accused with the intent to do him bodily harm. The accused had the right to act in-view of the conduct of the deceased as it reasonably appeared to the accused at the time. And that conduct constituted a provocation for the shooting which, as aforesaid, was certainly far in excess of a “very slight provocation.”

[7] It follows from what we have said that the court below erred in giving the instruction No. 6. It is not a case to which such instruction is applicable. There was, as aforesaid, no evidence whatever to support it.

For the reasons stated, the case must be reversed and a new trial awarded.

Reversed.