Stepp v. State

Hart, J.,

(after stating the facts). The first assignment of error is that the evidence is not sufficient to warrant the verdict. Whether the offense is murder or manslaughter depends upon the presence or absence of malice, which may be express or implied. The law implies malice where there is a killing with a deadly weapon and no circumstance of mitigation, justification or excuse appears at the time of the killing.

Inasmuch as no one can look into the mind of another, the'only way to decide upon its condition at the time of the killing is to judge from the attending circumstances, and the…