concurrence">McCay and Montgomery, Judges,

concurring.

The bill of exceptions in this case contains no history of the trial, no statement of any of the rulings of the Court in the progress of the cause. It is simply a statement that the case was tried, a verdict had, a motion made for a new trial, and that the Court refused to grant the new trial. We are left, therefore, to the record alone to discover the errors, if any,-of the Court. That record is simply the rule nisi and the judgment of the Court refusing the new trial. The rule nisi calls on the State to show cause why a new trial should *165not be granted, on the following grounds : 1st. Because the Court did so and so. 2d. Because, etc. The plaintiff has a right to put in his motion any ground for a new trial that he may think he has, and, though some of the Judges are in the habit of refusing even the rule nisi, unless the facts stated are true, yet this is not always the case, and is, in fact, only a new practice. We have frequently before us judgments refusing to make such rules nisi absolute, on the ground that the facts stated are not true. Most generally, however, the judgment simply grants or refuses the new trial, giving no reasons for it. It may be that the reason for refusing is, that the grounds taken are untrue. How are we to know ? But in this bill of exceptions there is a distinct assignment of error, on this ground, taken in the rule nisi, and the parties went into the argument before this Court that this assignment was supported by the record. Judge Montgomery and myself think it was too late to make this objection in the argument. It should have been done on the reading of the bill of exceptions, the real objection being that the bill of exceptions was not sustained by the record. We will not, therefore, in this case, refuse to consider the points.

As this was a case of assault with intent to murder, it is clear that if there was no malice, express or implied, the.defendant was not guilty. The Court was asked, in substance, so to charge, and he refused to do so. We think that was error. The evidence is such as that the jury might have found the shooting to be the result of that sudden heat of passsion which does not allow the voice of reason and justice to be heard, and that if the shooting had produced death, the offense would have been manslaughter.

We cannot agree with the Chief Justice that the evidence fails to show such malice, as if the charge had been given the jury would have been bound to find the defendant not guilty in any event. We think there is plenty of evidence to justify a verdict of guilty, even under a proper charge. The facts that this lady went to the rendezvous with the knowledge of her friends — That they followed her, armed — that this *166defendant was one of the crowd — that he displayed great malignity of feeling when the victim of their violence was apparently on his death-bed, and that he was armed, are, in our judgment, facts that would fully justify a verdict, even had the law been properly given.

But as the jury were not given the law of malice, as requested, we think there ought to be a new trial. The law is clear that, if there be not such malice as would make the shooting murder, had death ensued, but only manslaughter, the defendant is not guilty.

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How this case has been treated — in progress