rer to the declaration was sustained by the trial court, and the plaintiff appealed.

P. L. Mynatt & Son, for the plaintiff.

W. B. Farley and Arnold & Arnold, for the defendants.

over.

220 BLECKLEY, C. J. 1. The declaration is good in substance. It sets forth a substantial cause of action. The plaintiff being in possession of the premises under a written contract for one year, "with privilege of two years longer at same agreed rate," she was not subject to rightful expulsion at the end of the first year as a tenant at will holding She was not a tenant at will, and was not holding over, unless she had relinquished or forfeited the "privilege of two years longer at the same agreed rate," and this, so far as appears, she had not done. On the contrary, by remaining in possession after the year expired, she signified her intention to avail herself of the longer term provided for by the contract, and, if an express renewal was contemplated (which, under the words of the writing, seems improbable), some demand to execute a renewal contract should have been made upon her. It seems to us that merely continuing to occupy would spread the original contract over the two additional years, just as it had previously covered the first year's occupancy, and that any further express contract on the subject would be needless. The monthly rent was not payable in advance, and there was no hint in the declaration that the plaintiff was in any fault or default whatsoever. The year did not expire until the 1st of October, and the warrant to dispossess her was sued out the next day. The want of probable cause is manifest, and malice on the part of the defendants is distinctly alleged. Though the warrant was not executed by eviction, if the suing of it out maliciously and 221 without probable cause, and the attempt to execute it by eviction, occasioned special damage to the plaintiff, she can recover. The warrant was aimed at her possession, and would have deprived her of it had she not given the bond and security required by section 4079 of the code. It failed to expel her from the premises, but it brought her possession into imminent peril, and forced her to give bond and security as the price of preserving it. Had she not paid this price she would have been expelled, and the groundless and malicious proceeding would have been triumphant. It did

triumph so far as forcing her into making a bond and pro curing sureties to join with her in its execution was concerned. Had she failed to avail herself of this alternative, and if she had been turned out of possession in consequence, no one can doubt that she would have had a cause of action for the special damage occasioned thereby, the warrant having been voluntarily dismissed by those who procured it to be issued. Doubtless the course she took lessened her damages, and was therefore favorable to her persecutors. Shall she recover nothing, because she rendered their unfounded and malicious proceeding as harmless to herself, and consequently to them, as possible, instead of leaving it to work all the mischief which they intended? The dismissal of the warrant after it had coerced the plaintiff to give bond and security terminated the proceeding; consequently the pres ent action was not prematurely brought.

2. The declaration alleges that the premises were occupied and used by the plaintiff as a boarding-house, and that a lossof boarders was occasioned by suing out the malicious process. Such would be the natural and proximate effect of thus menacing the plaintiff's possession. It might be expected! that boarders would drop out when they ascertained that their landlady was about to be expelled, and that persons who might have become boarders would be deterred from so doing. 222 This interference with her business as a boarding-house keeper might well cause her special damage, and the declaration alleges that it did so in fact. If she incurred trouble and expense, including counsel fees, in giving bond and security to prevent expulsion, this also would be special damage. The declaration is loose and vague as to some of these matters, and needs amendment in order to give it full certainty; but, as we have already said, it sets forth a cause of action in substance. This being so, it was error to dismiss the action on motion or on general demurrer.

Judgment reversed.

MALICIOUS PROSECUTION OF CIVIL ACTION WHEN DAMAGES MAY BE RECOVERED FOR. -For the malicious prosecution of a civil action without probable cause an action will lie: O'Neill v. Johnson, 53 Minn. 439; 39 Am. St. Rep. 615, and note, with the cases collected. See, further, the extended notes to McCardle v. McGinley, 44 Am. Rep. 346, and Williams v. Hunter, 1a Am. Dec. 599.

JACKSON V. STATE.

[91 GEORGIA, 271.]

HOMICIDE-Killing Paramour, When MuRDER.-The act of a husband in going into a field where a man is at work and killing him, because he has committed adultery with the slayer's wife, when there is no necessity for the killing to prevent a future act of adultery, is murder, and not justifiable homicide. HOMICIDE-Self-defense.—Reasonable Fear as a defense has no appli

cation to any homicide if the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.

HOMICIDE-INSTRUCTIONS.-In a murder case a request to charge the jury which has no application either to the evidence or to the prisoner's statement, is properly refused.

OMICIDE-INSTRUCTIONS AS TO INVOLUNTARY MANSLAUGHTER.—If,

on

trial for murder, no evidence is introduced indicating that the killing was involuntary, and no charge is requested on that subject, involuntary manslaughter is not in issue, and should not be referred to in charging the jury, even though such a theory is indirectly suggested by the statement made by the accused.

HOMICIDE-NEW TRIAL-ERRONEOUS INSTRUCTION.—If, on a trial for murder, a witness for the prosecution is impeached by proof of contradictory statements, as well as by proof of bad character, the omission, by in. advertence, in charging on the subject of the impeachment of witnesses, to mention impeachment by contradictory statements, is not a ground for a new trial, especially if the attention of the court was not called to

the omission.

HOMICIDE-INSTRUCTIONS-CHARGE AS TO LAW AND FACTS.-A charge

given by the court to the jury in a murder case, that the jury is to pass upon the law and facts both, apply the facts to the law as given by the court, and from both together return a verdict of guilty or not guilty upon the issues submitted, is not rendered erroneous by adding: "The law of the case I am responsible for. It is made my duty to in. struct the jury properly as to the legal principles applicable to this case, and you are bound to take the law of the case from ine, just as I am bound to absolutely refrain from suggesting or intimating any opinion at all about the evidence. The one is your domain; the other is mine." PHOMICIDE-DOUBT TO REDUCE GRADE OF CRIME.-It is not when the jury has any doubt, but only when it has a reasonable doubt as to which grade of homicide the accused has committed, that he should be given the benefit of the doubt, and found guilty of the lesser grade.

INDICTMENT and conviction of murder. At the trial the Court refused to charge the jury that: "If you believe from the evidence that, when the prisoner came upon the deceased, apon the sight of him he became so enraged at the thought of past or attempted wrongs upon his wife or family that reason was dethroned by passion, and, carried away by such passion and not in a spirit of revenge, that the defendant under such influences killed the deceased, such killing could

not be of a higher grade than manslaughter." The court when charging the jury on the subject of taking the law from the court and applying it to the facts in the case, added the words which appear in quotation marks in the sixth paragraph of the syllabus above.

R. Ellis and E. A. Cohen, for the plaintiff in error.

J. M. Terrell, attorney general, and W. H. Felton, Jr., solicitor general, for the state.

273 BLECKLEY, C. J. 1. There is no law of this state, or of any other state or country of which we have ever heard, which will justify a husband in going into a field where a man is at work and killing him because he has committed adultery with the slayer's wife. To do such an act is murder absolute and unqualified. It is taking the law in one's own hands and punishing a man with death for a past transgression. This is contrary to all principle of law and the administration of law. Under the facts of this case there was no necessity for the killing to prevent a future act of adultery between the slain man and the slayer's wife. No such act was in progress, or could have been in progress, for the parties were separated by such distance that the act was impossible. The doctrine of reasonable fear as a defense has no application to any homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.

2. The request to charge the jury touching the prisoner's excitement to such an extent that his reason was dethroned by passion, and he was carried away by the passion, had no application either to the evidence or to the prisoner's statement. Without considering other objections to it, this was sufficient to render it an improper charge to submit to the jury. In his statement the prisoner did not pretend or profess to have acted under any such influence, and there was no evidence giving the slightest color to such a theory.

3. Nor was there any evidence to indicate that the killing was not voluntary, and no charge was requested on the subject of involuntary manslaughter. It was not an issue in the case, and the court was right in making no allusion to it in his charge to the jury. If the indirect suggestion bearing that way in the prisoner's statement was any ground for such a charge, an express 274 request should have been

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 attention 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 say ing "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 useit 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 author. 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