¶1Jenkins, J., delivering the opinion.
¶2After verdict in the Court below, the plaintiff in error moved for a new trial, on several grounds, as set forth in the statement. The first and second grounds will be considered together, because the correctness of the verdict must be determined by applying- the law to the facts in evidence.
¶3There can be no doubt that the deceased came to his death by Avounds inflicted by the plaintiff in error, Avith intent to kill him. The justification rests upon the alleged necessity imposed upon the plaintiff in error, to kill the deceased in order to save his OAvn life. If this necessity appear from the evidence, the verdict should have been set aside and a new trial ordered. But if, on the contrary, it appear that the slayer Avas in no imminent danger when he inflicted the mor*7tal wound; that the deceased had either made no assault upon him or had ceased from it, and was retiring, it would be difficult to make out a case of self-defense.
¶4This defense rests mainly upon the fact that deceased fired upon and wounded the plaintiff in error, with a shot-gun. It is not very apparent from the evidence whether this shot was made whilst the plaintiff in.error was in the act of drawing his pistol or before he attempted so to do. But in the doubt attaching to this point, justice to the accused may entitle him to the assumption that deceased leveled his gun and was in the act of firing, before plaintiff in error drew, or attempted to draw, his pistol. This places the deceased in the position of assailant. But does it make out the defense ? The evidence does not show either that the deceased continued th<$ assault or that he had the means of continuing a dangerous assault.
¶5The witnesses say he had a shot-gun, and do not say it was a double-barrel gun, or that deceased had any other weapon, or was reloading, or was continuing to advance upon the accused. On the contrary, two witnesses say distinctly, that the accused shot four five times at deceased, inflicting as many wounds, and that while he was so shooting; deceased was walking away from him. The testimony is, that deceased had only a single-barrelled shot-gun, and after having delivered his fire, was powerless in the presence of a foe armed with a revolver. The jury were abundantly justified in drawing this inference from the evidence; and then the question would arise, did the accused inflict those four or five wounds upon the deceased under the excitement of reasonable fears for his personal safety, or was he prompted by a sudden, violent impulse of passion occasioned by the assault then done and ended. The verdict evinces that they arrived at the latter conclusion, and in view of the seventh, thirteenth and fifteenth sections of th.e fourth division of the Penal Code, we perceive in their finding no error of law or of fact. We sustain this verdict upon this ground, that even immediately after an assault endangering life or limb, the killing of the assailant by the assailed will be manslaughter, if it be apparent that the assault, and with it the personal danger of *8the assailed, had ended, and that the mortal wound was inflicted as the assailant had ceased from the attempt and was retreating.
¶6The statistics of crime in Georgia show that the lower grades of felonious homicide are of much more frequent occurrence than the higher. This may result from the inclination of jurors to acquit entirely, where the evidence does not justify a conviction for murder.
¶7In all cases where a just discrimination is exercised by juries, Courts should scrupulously avoid interference with their verdict.
¶8The next ground of exception is, that the Court erred in admitting common repute, as evidence of the maternity, and consequently, social position, of the accused. "We have searched the record in vain for evidence that objection was made to the introduction of this testimony when offered, or at any time anterior to the rendition of the verdict. If, therefore, it were illegal evid^pce, of which we are by no means satisfied, we could not entertain the exception.
¶9The remaining exception is to the charge of the Court, regarding the degree of certainty as to the social caste of the accused,' necessary to a conviction. In this charge, we understand the Court to have discriminated between the question of guilt or innocence, and the question of social caste, and to have intimated that a less degree of certainty was requisite upon the latter than upon the former question, and he concludes with these words: “If you are satisfied from the evidence that he is a free person of color, that is sufficient on that point.” This is equivalent to saying, unless so satisfied, the evidence is insufficient on that point; and in all this we see no error. Our conclusion is, that the motion for a new trial was properly overruled.
¶10Let the judgment be affirmed.