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 knowl. edge 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 imminent 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 ac cused 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. Το 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

to eat; instead of going to the girl's mother or father he went to the little girl's bedroom. Look to the evidence to see whether or not he had been offered supper before that time; whether or not he had not been given peaches and offered supper. See whether or not he went in that time of night to get any thing to eat or not. If he did, you should find him not guilty. See whether that was suppertime or not, and whether it is usual for a black man to go into a white girl's room at 12 o'clock at night for the purpose of asking for something to eat. If it is, and that was his intention, to get something to eat, you should find him not guilty, because he is not guilty of any crime if that was the object of his visit to the room. I only mention these things as illustrations to show you how to arrive at the intention of the parties. So you will take the case, and look through it carefully, and determine, first, whether the defendant was there at all or not. On that subject you will take into consideration all of the evidence; look to the evidence of the peaches and plow being left on the fence, and all the other evidence in the case bearing on the subject, and determine whether he was there or not. If you should find that he was there, then consider his conduct as proved; you will look to all the circumstances and evidence in the case to gather what his intention was; and if you doubt that his intention was to commit the offense of rape, you should find him not guilty. If you believe from the evidence that that was his intention, to go in there and commit rape, you should just as unhesitatingly find him guilty. That intention must be gathered from all of the circumstances in this case. It is contended by the defendant's counsel that the old man, as he heard his daughter's cry, stumbled over some chairs, and ran up in the chimney-corner, and was so excited he did not know what occurred. You will take all these things into consideration, so as to see what the truth of this case was. If you believe he was so excited he did not know what he was talking about, could not tell the man, could not say who he was, you must consider it in that light; you can also look to it in this light: whether or not his daughter's cries were so exciting and frantic that it aroused him to the highest pitch of excitement; that he rushed in hurriedly to see what was the matter with her; take both views into consideration. You can apply your own personal experiences, if you have any. What effect would it have upon you, gentlemen-what effect would it