have misled the jury to believe that the defendant must prove it from other evidence.
The 6th instruction is: "If the jury should believe from the evidence that the provocation was sought by the defendant, it cannot furnish any defense against the charge for a felonious homicide." This instruction is too vague as to what was meant by "provocation," and what was the meaning of "felonious homicide." The only objection to this is its obscurity, which we could not pronounce a decided error, unless it was misleading. See Payne v. Com., 1 Met., 370.
The 7th instruction is law. It is: Express malice is that deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
8. "Malice shall be implied when no considerable provocation appears, or where all the circumstances of the killing manifest an abandoned and wicked disposition; and the jury is instructed that if they believe from the evidence that the killing was malicious, and that the difficulty was brought on by defendant, no provocation, however great, will reduce the killing from murder to manslaughter." The only objection to this instruction is the failure, there or elsewhere, to define the distinction as given by law between the degrees of homicide. A malicious killing is not necessarily murder in the first degree. To find that, the jury must be satisfied beyond a reasonable doubt that the killing was wilful, deliberate, malicious and premeditated (25 Ark., 405), or was committed in the attempt to commit some one of the felonies described in the statute. The premeditation must exist as a course deliberately fixed upon before the act of killing. Bevens v. State, 11 Ark., 455.
9. "The jury are the judges of the credibility of witnesses from the manner of testifying, their means of observation, and
