¶1To constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily in the usual course of events, death or great bodily harm may result. It is not necessary that the perpetrator intended or willed the death of the party. — Harrington v. State, 83 Ala. 13, 3 South. 425; White v. State, 84 Ala. 421, 4 South. 598; Lewis v. State, 96 Ala. 10, 11 South. 259, 38 mA. St. Rep. 75.
¶2Charge 3, asked by the defendant and refused, should have been given. The defendant was under 14 years of age. The presumption is, that he had not the requisite guilty knowledge of the wrongfulness or wickedness of the act charged, to authorize a conviction of felony, unless rebutted by clear evidence of a mischievous discretion, or by proof of knowledge of good and evil, which knowledge must be made distinctly to appear from the evidence.- — Martin v. State, 90 Ala. 608, 8 South. 858, 24 Am. St. Rep. 844; 4 A. & E. Ency. Law (1st Ed.), 684.
¶3Aside from the evidence of the transaction of the killing, there was no evidence as to the capacity of the defendant to commit a felony, except that detailed by Buck *18Boswell, the wife of the deceased, examined by the state, who testified: “I had been employed by Mr. Redcloch, with the knowledge and consent of deceased, to cook for and feed Alonzo (the defendant), and Alonzo was there for the purpose of eating supper. He frequently spent the night there with my boy, Wash Hancock. Alonzo was at that time 13 years old, and was 14, the following October. He is small for his age, and is not very bright, and Henry Boswell was a man about 40 or 45 a ears old, and-weighed 165 or 175 pounds; that he was drinking at the time, and under the influence of Avhisky. He was a very bad, roAvdy and dangerous man Avhen drinking.”
¶4The evidence further shoAvs, that Henry cursed and abused Alonzo, before and at the time of the killing, and put him under great provocation.
¶5Under all the evidence, Avhether defendant had the requisite guilty knowledge of the Avrongfulness or wickedness of the act charged against him, and whether or not the presumption, at his age, that he did not have such capacity, was rebutted by clear evidence of a Avicked discretion; or, Avhether the proof shoAved a knowledge on his part of good and evil, Avhich Avas made distinctly to appear from the evidence, were questions proper, under all the evidence, for the determination of the jury, and not for the court to decide.
¶6Charge 4 Avas properly refused. There is no evidence, that the killing was the result of an accident; but it shows, that it was the result of an injury intentionally inflicted by defendant on deceased.
¶7Charge 5, if proper so far as it goes, fails to hypothesize an act of violence, on the part of defendant, from Avhich ordinarily, in the usual course of events, death or great bodily harm might result.
¶8Under the evidence, it cannot be asserted as matter of law, that the doctrine of retreat is not applicable to this *19case; hence no error is involved in the refusal oi charge 6.
¶9The seventh, which was the affirmative charge for the defendant, was improper, under the evidence in the case.
¶10Reversed and remanded.