Stokes vs. The State.

the distinguishing mark of all cases of homicide that are murder. They are cases in which is wanting a "deliberate intention" to take life-such a "deliberate intention" as "is manifested by external circumstances capable of proof." Therefore, they are cases free from express malice. They are cases, in respect to neither of which ean it be said that it is a case "where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart." Therefore, they are cases free from implied malice. (Code, 4th Div.)

These cases, therefore, cannot be got into the class murder, without the doing of great violence to the definition of murder.

Neither can they be got into the class justifiable homicide, without the doing of equally great violence to the law defining or designating justifiable homicide.

What then? Shall we exclude these cases from every one of the three classes of homicide? That cannot be, for the law says that every case of homicide is to be included in some one of those classes.

In some one of the above classes, then, we have to include the cases. Which shall it be? Manifestly, that class into which the cases will go most easily-will go by the use of least force. And that one is manslaughter. The definition of manslaughter is such, that if it stood alone, the class manslaughter would receive them readily-without having in the least to be forced. "Manslaughter is the unlawful killing of a human creature without malice, either express or implied, and without any mixture of deliberation whatever." (Code, 4th Div.) This is not true of the definition of murder, or the definitions of justifiable homicide. To make the definitions of those two classes of homicide such that they would receive these cases, would be to so change them as to destroy their characteristics. It is true, the definition of manslaughter does not stand alone.. It is accompanied by the said seventh section, which declares, that "In all cases of voluntary manslaughter, there must be some actual assault upon the person killing," &c. But it re

Stokes es. The State.

quires a less degree of force to let the definition control this section than to let this section control the definition; for if we let the section control the definition, we have also to let it control another definition-that of murder; and so to control that definition as to make it say, that there may be cases of murder without malice. ·

[1.]. The result is, that these cases have to be considered, not cases of murder, but cases of voluntary manslaughter. And if that be true of these cases, then it may be laid down as a rule, that no case of homicide can be a case of murder, if it is not accompanied by malice, either express or implied; and that every case of homicide not so accompanied, is, notwithstanding the said seventh section, a case of manslaughter, unless it be a case of justifiable homicide.

Is that section, then, to have no effect? By no means. It is to be used to help us arrive at what is malice-implied malice. "Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart." And that section says: "Provocation by words, threats, menaces or contemptuous gestures, shall, in no case, be sufficient to free the person killing from the guilt and erime of murder.". This is as much as to say, that provocation by "words," &c. is not "considerable provocation"; and that if life be taken in consequence of such provocation, it will be taken under circumstances which will "show an abandoned and malignant heart.' In short, it is as much as to say, that notwithstanding any provocation by "words," &c. malice shall be implied.

I incline, very much, to think that the true meaning of this seventh section is this, viz: in all cases of homicide, in which the provocation is but "words," &c. the offence shall not be reduced from murder to manslaughter; in all cases of homieide, where the provocation is "some actual assault," the offence may be reduced from murder to manslaughter, if there is not a sufficient cooling time between the assault and the killing. This, I incline to think, is the true meaning and the whole meaning. I cannot think the section was intended to

Stokes rs. The State.

affect cases, in which the provocation was neither "words," &c. nor" some actual assault,"-was intended to affect the case, for example, of the man whose provocation is an act of adultery with his wife, committed under his own eyes. (4 Black. Com. 192.)

If what has been said is true, it follows that the Court below, in charging the Jury that "There must have been some assault by Henly on the prisoner, or an attempt, by Henly, to commit a serious personal injury on him, to reduce the crime from murder to manslaughter," stated the rule too broadly, and that the Court should rather have charged the Jury, that although there might have been no assault committed by Henly on Stokes; yet, if Stokes had other and very great provocation from Henly, such provocation as that which a man has who takes another in the act of adultery with his wife; and if all the circumstances of the killing showed that he acted from a sudden, violent heat of passion, occasioned by such provocation, and not from the promptings of an abandoned and malignant heart, of all which they must judge from the evidence, then the homicide would be no more than manslaughter.

The Court held, that to impeach a witness on the score of character or reputation, it is necessary that the examination be confined to his "character for truth and veracity."

[2] In Phillips on Evidence, 1, 292, it is said that "The regular mode of examining into general character, is to inquire of the witnesses whether they have the means of knowing the former witness's general character; and whether, from such knowledge, they would believe him on his oath?" With Phillips agree Starkie, (Stark. Ee. 182,) Greenleaf, (Green. Er. Sec. 461,) and Cowen & Hill (Cow. & Hill's Notes to Phill. Ev. note 531,) as also does the case of Rex. vs. Bispham, (4 Carr. § P. 392.)

We think that the weight of authority is with Phillips; and therefore, that the rule, as laid down by the Court, is too nar

row.

Beall et al, vs. Cochran, adm'r, &c.

Wherefore, it seems to us, that under the New Trial Act of 1854, a new trial ought to be granted.

No. 6.-CHARLES C. BEALL et al. plaintiffs in error, vs. A. E. COCHRAN, administrator, &c. defendant in error.

[1.] A suit was brought against the Sheriff and his two sureties, on his official bond. On the first trial, judgment was recovered against all three. The Sheriff appealed under the Act of 1839, the sureties neglecting or refusing to do so. On the final trial, the Sheriff was acquitted from any liability on account of his alleged misconduct: Held, that the first judgment could not be enforced against the sureties.

Illegality, in Wilkinson Superior Court. Decision by Judge HARDEMAN, October Term, 1854.

Suit was brought by A. E. Cochran, as administrator, &c. against Solomon B. Murphey, Sheriff, and the sureties on his bond, on an alleged misfeasance, in demanding and taking more costs than the law allowed. On the first trial, there was a recovery by the plaintiff below. Murphey, the principal, alone appealed. Upon the appeal trial, a verdict was rendered in his favor; execution was issued on the first verdict, and judgment against the sureties, who had not appealed. An affidavit of illegality was filed, on the ground that the sureties were relieved by the final judgment relieving their principal. The Court below dismissed the illegality, and this decision is assigned as error.

JNO. C. BOWER, for plaintiff in error.

A. E. COCHRAN, for defendant in error.

Beall et al. vs. Cochran, adm'r, &c.

By the Court.-LUMPKIN, J. delivering the opinion.

[1.] Ought the sureties to pay the money recovered on the first judgment? and because of that judgment? To state the case free from all embarrassment growing out of the Act of 1839, (Cobb's Dig. 500,) authorizing one of several parties, plaintiff or defendant, to appeal, and which urgently demands legislative explanation and amendment, as was made manifest in Stell vs. Glass, (1 Kelly, 475); and Allison vs. Chaffin and another, (8 Ga. R. 330,) and other decisions of this Court-suppose the suit had been brought separately in this case, against the Sheriff and each of the sureites-and this could have been done, the bond being joint and several—and suppose judgments had been recovered against each of the sureties on account of the alleged misconduct of the principal; and then, on the trial against the Sheriff, he should have been acquitted of all delinquency-is it possible that Equity would not relieve the sureties by injunction, against the payment of the judgments against them? If it would not, there would, unquestionably, be a most signal and lamentable failure of justice in such a case. Sureties made to respond for the default of their principal, of which he was never guilty! They mulcted, perhaps, in the entire penalty of the bond, and he discharged from all liability, leaving them, of course, without the right of recourse over against their principal for contribution!

It is said Courts make precedents. We disclaim all such pretension. It is nevertheless true, that all precedents had a beginning; and if none can be found for this case, it is because, under our peculiar Statutes regulating the relation of principal and surety, and the rights of the latter, resulting from that relationship, after as well as before judgment, the case, itself, is one sui generis.

Whether the Act of 1799 authorized a suit against the sureties on a Sheriff's bond, for any default or misconduct in his office, anterior to a recovery against the principal, I will