majority">SteveNS, J.,

delivered the opinion of the court.

(After stating the facts as above). We have not and shall not undertake to detail all the evidence in this case. To do so would be a tedious and useless task. We have briefly outlined in the statement of facts that part'of the testimony tending to shed light upon the main question which we shall discuss in this opinion, and that is: Whether the proof offered by the state warranted the sum-mission to the jury of the. question of felonious intent to kill and murder, and whether the verdict of the jury convicting appellant of a felony should be sustained. The court, under usual instructions, authorized the jury to say *215by their verdict that appellant, at the time he committed the assault, intended to take Dr. Jones’s life. The evidence is conflicting on the issue of self-defense — whether appellant was justified in inflicting the wound under the belief that Dr. Jones was endeavoring to do appellant great bodily harm. Under all the testimony on behalf of the state, the jury was fully warranted in believing that appellant was in fault and wrongfully assaulted Dr. Jones. If appellant therefore had been convicted of assault and battery, we would unhesitatingly say that the proof justified the verdict. But what of the more serious element of the offense — the intent to kill and murder Dr. Jones? Does the proof justify the finding by the jury that appellant intended to take life?

' In arriving at a correct solution of this question, it is well to remember the burden of proof was upon the state to show the intent to kill and murder and to show this beyond all reasonable doubt. It is argued by counsel especially employed in the prosecution of this case that appellant attended the meeting of the Masonic Lodge in company with other members of his family with the purpose of making trouble. The proof, as we see it, does not justify any such inference. There is no sufficient showing, of a conspiracy between appellant and his brother, John W. Clark, or any of his brothers-in-law. There is a strong intimation that appellant had knowledge of the purpose of the grievance committee to prefer some kind of charges against appellant’s brother. The nature of these charges could not be accurately known in advance. The specifications were for the first time disclosed wheii Dr. Jones read the committee’s report in open session of the lodge. It will be observed that this report is languaged in most emphatic terms. It really does not so much submit charges as conclusions already reached by the members of the committee. The language of the committee is that “we find.” The committee therefore, without an opportunity to John W. Clark to be heard in defense, finds the facts against him. These conclusions of the committee are also very *216far-reaching and the charges very caustic. The committee, finds that John W. Clark has embezzled the funds of the bank, the funds of depositors, the funds of helpless widows and orphans, the funds of Pattona Lode No. 232, and the funds of individual brother Masons. "When these most sweeping charges were being read by Dr. J ones, appellant said nothing. It was only when Dr. Jones, in addressing the entire membership and in answering the pacific speech of Dr. Chapman, made the unnecessary statement, “I don’t think there is a Mason in the sound of my voice that doesn’t know he is guilty of these charges,-.. that appellant resented the remarks and attitude of Dr. Jones. It is true that appellant used intemperate language — words which he should not have employed. However, there certainly would have been no difficulty if Dr. Jones had resumed his seat without following up this wrongful remark of appellant, hut when appellant stated, “It’s a lie,” Dr. Jones, in a very human fashion, resented the words employed by Clark and in doing so practically made an assault upon him. Dr. J ones proceeded in the direction of appellant and around behind the master’s table and both spoke and acted in a manner that amounted to a demonstration of his indignation. The evidence is conflicting as to whether he struck at appellant. According to the state’s evidence. He made no effort to hit Clark, but was wrongfully stabbed by appellant just as Dr. Jones turned his head to address the master of the lodge. The undisputed testimony shows, however, that the anger of both men was kindled by intemperate language employed by each of them; and under all the circumstances, we are firmly of the opinion that when appellant struck at ijr. Jones he did so under the impulse of the moment, while his blood w;as hot and his anger and passion aroused. This is manifest from the entire setting and all the circumstances surrounding the assault. Dr. Jones is a reputable citizen and distinguished physician. The proof indicates that Mr. Clark is a member of a good and worthy family and a man of previous good character and *217standing in the community. Appellant’s interest in his brother would be most natural and human. The sweeping charges and the caustic remarks of Dr. Jones would very naturally arouse appellant’s feelings. Appellant’s resentment of these charges and the statement that every Mason in the lodge knew the charges were true was most natural, regardless of the guilt or innocence of John W. Clark. It is a plain and simple case where two ieputable and red-blooded men became aroused under -under the impulse of the moment, and where unfortunately appellant acted hastily and wrongfully. In doing so, however, he dd not act with that deliberation, that design, that malice aforethought which indicates an intent to commit murder. We think therefore it was error on the part of the trial court to submit the issue of intent to kill and murder to the jury There is not sufficient proof to sustain the felony part of the charge. There is here no evidence whatever of previous threats, malice, or ill will. Dr. Jones himself says, ‘ ‘I was .not looking for anything” in the way of trouble; and, at another place in his testimony : “I didn’t know he wanted to hurt me. . . . I had nothing in the world against Frank Clark and never had in my life.” The witnesses for the state justify the conclusion that Dr. Jones was excited when he approached appellant and, whether intentional or not, actually made a demonstration. Mr. Bridger, one of the witnesses for the state, says. “Bob Herrington was with Dr. Jones and had told of him.” Mr. Flowers, another witness for the state, says, “He started toward Frank shaking his finger or hand at him,” and also that Dr. Jones “is pretty high-tempered. ’ ’

If there was no premeditation and malice, there would have been no murder in the event the wound had proved fatal. It is stated by Mr. Wharton that:

“Provocation in law is used in the ordinary acceptation of the word, and means that treatment of one person by another which arouses anger or passion.

*218“By mitigation, it may reduce the grade of an offense, but it never justifies a crime. In homicide it negatives the idea of premeditation and malice, because the hot blood engenered by provocation produces a temporary suspension of the reflective faculties, and the passion aroused excludes the idea of deliberation. Hence, the rule as to the measure of proof is, after the evidence has been submitted on both sides, ‘Is it sufficient to cast a reasonable doubt on the essential averments of the indictment? If it is sufficient for this, the defendant is entitled to an ac-quital.’ ” 1 Wharton’s Criminal Evidence, p. 679.

We are constrained to hold, also, that the learned dis-' trict.attorney, by his method of interrogating the witnesses and in referring to the embezzlement charges against John W. Clark, exceeded the bounds of legitimate examination and inquiry. It appears that there had been a hank failure at Hermanville, and that John W. Clark, cashier, and brother of appellant, had been indicted for embezzlement growing out of this failure. The district attorney assumed the guilt of John W. Clark and ridiculed the idea that appellant, the brother, should attempt to resent any charge of John W. Clark’s guilt. Much stress is also laid by the district attorney upon the un-Masonic conduct of appellant. The tendency of the examination copied in the statement of facts was an appeal to very natural prejudices and impulses of the jurors. It was largely a reliance for conviction upon the honor of Masonry and the dishonor of. a bank failure.

Reluctant as we are to upset the findings of a jury, we are compelled to set aside the judgment of conviction and to remand the cause for a new trial. It is not so much a question of guilt or innocence of any crime, as a question of the grade of offense committed. A white man of previous good character and reputation has been sentenced to the state penitentiary. The finding of the trial court brands him as one who intended to do murder. An assault and battery under the heat of passion is a very different thing from a premeditated design to take life.

Reversed and remanded.

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