made to give the charge. On the subject of conflict of evidence and credit of witnesses the charge was full and correct. Apparently, by inadvertence there was an omission, in charging on the subject of impeaching witnesses, to mention impeachment by contradictory statements. There was evidence tending to impeach one of the state's witnesses by that means as well as by proof of bad character. The atten tion of the court was not called to the omission, although in the nature of things counsel must have known that it was most probably made by inadvertence. We think this mere slip is no cause for a new trial. 5. On the subject of taking the law from the court and applying that law to the facts of the case, the charge was not in conflict with what has become the settled meaning of the rule that the jury are judges of the law as well as of the facts. The organ for acquainting them with the law is the court and when they thus ascertain it they are to apply it to the evidence, and from both together make up a verdict of guilty or not guilty upon the issues submitted. By saying "the one is your domain-the other is mine," the court did not exclude, nor mean to exclude, the jury from dealing with law after he had expounded it to them, for the very object of instructing them upon it was to enable them to use it in applying it to the facts of the case and arriving at their verdict. 6. It is not a correct proposition of law that if the jury have any doubt, but only if they have any reasonable doubt, as to which grade of homicide the accused has committed, they should give him the benefit of the doubt, and find him guilty of the lesser grade. They can find the higher grade, not alone where they are convinced beyond all doubt, but where they entertain no reasonable doubt of that being the real grade of the offense. 275 7. If evidence can manifest guilt of the crime of murder, the evidence does so in this case. It certainly does not shut out sympathy for this unfortunate man, but it manifests fully his guilt under the law. There was no error in denying a new trial. Judgment affirmed. In the case of Farmer v. State, 91 Ga. 720, it was decided, on the anthor. ity of the principal case, that it is only when there is an absolute necessity that the killing of a human being be perpetrated to prevent adultery of the victim with the slayer's wife, that the homicide is justifiable, and that the killing of a person because of a past attempt by him to debauch the slayer's wife is not justifiable homicide. HOMICIDE-KILLING PARAMOUR, WHEN MURDER.-Where adulterous intercourse has taken place for a long series of years with the full knowledge of a son, who slays his mother's paramour in revenge, the adultery is no justification: State v. Herrell, 97 Mo. 105; 10 Am. St. Rep. 289, and note. It is murder for a husband to kill one who has previously committed adultery with his wife, and who, the prisoner believed at the time of the killing, is accompanying his wife for the purpose of committing adultery: State v. Samuel, 3 Jones, 74; 64 Am. Dec. 596, and note. See the extended note to Price v. State, 51 Am. Rep. 328-330. HOMICIDE-SElf-defense-WHAT IS.-Self-defense is the resistance of force, or seriously threatened force, either actually pending or reasonably apparent, by force sufficient to repel the actual or apparent danger and no more: Springfield v. State, 96 Ala. 81; 38 Am. St. Rep. 85, and note. Life may be lawfully taken in self-defense, but it must appear that he who takes it was in imininent danger of death or great bodily harm, and that no other way of escape from the danger was open to him: Commonwealth v. Breyessee, 160 Pa. St. 451; 40 Am. St. Rep. 729, and note, with the cases collected. See further the note to Askew v. State, 33 Am. St. Rep. 87. TRIAL JURY AS JUDGES OF LAW AND FACT IN CRIMINAL CASES: See the extended note to State v. Whitmore, 42 Am. St. Rep. 291. The jury in a case of homicide are the judges both of the law and the facts, and no law which they are entitled to consider should be withheld from them by the court in its charge: Keener v. State, 18 Ga. 194; 63 Am. Dec. 269, and note. JACKSON V. STATE. [91 GEORGIA, 322.] RAPE ASSAULT with Intent to COMMIT.-One who, under the excitement of lust and with intention of gratifying it by force, enters the bedroom of a woman near midnight, and gets upon the bed in which she is sleeping for the purpose of ravishing her, commits an assault with intent to commit rape, though he does not actually touch her, or touches her casually and incidently only as she escapes. RAPE ATTEMPT TO COMMIT EVIDENCE.-On the trial of a person for an assault with intent to commit rape, social customs founded on race differences and the fact that the accused is a negro and the woman a white person may be taken into consideration by the jury in determin. ing the intent of the accused. It is legitimate for the jury to note any departure from the customary modes of visiting involved in the nocturnal entrance by a negro into the bedroom of a white woman during the hours devoted to sleep, when there is nothing to show that the woman was not virtuous, or that she held out any encouragement to such negro or any other person to enter her bedroom for illicit intercourse. NEW TRIAL EVIDENCE TO SUPPORT VERDICT.-Although the evidence is barely sufficient to uphold the verdict, no error is committed by refusing to grant a new trial on the ground of the insufficiency of the evi dence to sustain the verdict. INDICTMENT for and conviction of an assault with intent to rape, and an appeal from an order denying a new trial. The accused went to the home of one Hopson on an errand, finished it, and started away. Hopson and family retired to bed, his daughter, Alice, sleeping in a room adjoining his. About 12 o'clock at night Alice was awakened by the accused calling her by name, and found him sitting on the foot of her bed. She called her father, and sprang from the bed, and the defendant followed her, touching or catching hold of her foot. Her father responded to her call, and as he came into the room the accused escaped. The court instructed the jury in relation to the accused as follows: It is not necessary for the state to show you that he expressed in so many words any such intention, to enable you to arrive at the fact that he did so intend. The intention may be gathered from the circumstances of the case as proved before you, and the conditions, race, and conduct of the parties. The reasonable experience of upright and intelligent jurors of the subject before them should be taken in consideration, to enable the jury to determine what was the intention of the party, the defendant. Verdicts of juries are reached by the jury reasoning and discussing the evidence by regular steps; you take in consideration some essential fact of the case, some essential requisite of the crime, and you discuss that from the evidence, and you come to a conclusion on that; you will take up every other essential element of the offense, and consider them in the same way. For instance, in considering this case, one of the essential elements is, Was it the defendant that was there? You see how unnecessary it would be to go into the other features of the case, unless you come to the conclusion that it was the defendant that was there. If it was not the defendant there, it would not be necessary to go further into the discussion of the case, because it would not matter what was done if the defendant was n't there, and you should find him not guilty. Because, if the defendant did not do it, he is not concerned, and you could not find him guilty. So that should be one part of the offense you should discuss first, whether the defendant was there or not. In doing so you will take into consideration all the evidence in the case. The presumption of law always is in favor of testimony; the law presumes that witnesses will speak the truth; that whatever they speak is the truth, unless something appears in the tes timony to the contrary. The natural presumption of law is that witnesses speak the truth. So, in determining the question whether he was there or not, you will see what the evidence was. See whether or not one or more of the witnesses saw the defendant there; whether or not they recognized him; whether or not they heard his voice; whether or not they recognized that; how well acquainted they were with his voice; how close they were; how well acquainted they were with his appearance, shape, form, size, and his voice; and as reasonable men, from all the evidence, determine whether or not you believe from all the evidence, beyond a reasonable doubt, whether the defendant was there or not. If you have a reasonable doubt as to whether it was the defendant that was there, after considering the testimony, you will find your verdict in favor of the defendant at once. If you should come to the conclusion, beyond a reasonable doubt, that the defendant was there, you will then discuss other questions in the case; you will take the evidence of his conduct on that occasion; see what he done, and then see with what intent he done it. If you believe that the defendant went into the room where the young girl was, and called her name twice, and sat down upon the bed where she was sleeping, and caught hold of her foot or touched it, you can gather from these facts what the intention was. You have the right to consider who the parties were; consider whether one was a black person and the other a white person. You have a perfect right to take into consideration the difference in the races, so as to see what the intention of the parties was. To illustrate how necessary that would be for you to consider, suppose it had been her father that walked in there and called her twice and caught or touched her foot, from these circumstances what would you have inferred his intention to be? The necessary and most reasonable inference would be that he went and woke up the child to tell her something. It would be an unreasonable inference that he went there to commit rape upon his young daughter. Therefore, I say you have the right to consider who the parties were, what could have been his intent; as reasonable men, knowing the customs of society in this country, and the contact of the races in this country, you have the right to inquire in your minds what his business could have been. It is insisted by defendant's counsel that it might have been to have some other business, some little private chat, perhaps to entertain her while in her bedroom in bed and in her nightclothes, and he with his clothes on, one a black man and the other a white girl. Look, therefore, into the customs of society, and see whether that is customary in this country, for a black man to go in a white girl's room to have a little chat at 12 o'clock at night, she in her bed with her nightclothes on, and he dressed. You have the right to look to the customs of the country, what contact the two races usually have with each other, in arriving at the intent of the defendant in going to the girl's room, if you should believe he went there. If you conclude from the customs of the country and the contact of the two races, it is customary for black men of this defendant's age and size to visit white girls, and you think it reasonable that he should have gone into the bedroom of a girl of her age and size for the purpose of having a pleasant chat, you should find the defendant not guilty, because that would be no crime, if that was the reason he went there. It is insisted by the defendant's counsel that he went there to have sexual intercourse with the little girl, and with the consent of the little girl. Look into that carefully and see whether or not that is the true version of this case; take all of the circumstances into consideration. If you believe from the circumstances and evidence that it was his intention to have intercourse with the girl by her consent, and he did not intend to use any force at all, you should find the defendant not guilty; but, in arriving at that conclusion, consider the testimony and see what the little girl done, whether any act or word of hers would carry that inference. When her name was called, did she by any act or word invite the party? Did she make any movement toward inviting the defendant? Is there any proof in the case to show that she was a girl of that character? Is there any evidence in the case to show that he had any reason to suspect that she would consent to it? Is it such a customary thing that a black man has intercourse with white girls, that you could look upon it as a natural thing in the country? Look to all these questions, and if you believe that was his intention, that he would insist a little and the girl would consent, and that he would have intercourse with her, and did not intend to use any force at all, you should find the defendant not guilty. But look to the evidence to see what is the truth of the case. It is insisted that he may have gone in there to get something |