(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 question of the presence or absence of malice at the time of the killing is for the jury, when there is any evidence to support its finding. Dame v. State, 164 Ark. 430, and cases cited; Sullivan v. State, 163 Ark. 353; Cash v. State, 161 Ark. 75; Adams v. State, 160 Ark. 405; Fields v. State, 154 Ark. 188; Webb v. State, 150 Ark. 75; Crofton v. State, 144 Ark. 164; and Brooks v. State, 141 Ark. 57.
*1068Under our rules of practice, the jury is the judge of the credibility of the witnesses and the weight to be given to the evidence. Hence, in testing the legal sufficiency of the evidence to support a verdict for murder in the second degree, it must be viewed in the light most favorable to the State. We have set out the substance of the testimony relied upon by the defendant to justify the killing, as well as the evidence for the State to support the verdict, in order to better get at the viewpoint of the jury. In arriving at its verdict, the jury is not required to accept or reject the whole of the testimony of a particular witness. In the discharge of its duty it may accept that part of his testimony which is believed to be true and reject that part which it finds to be false. Tested by this rule, it cannot be said that the killing was done in the heat of passion and without malice.
It is fairly inferable from the evidence that bad blood existed between the defendant and the two Pietys, father and son. It was claimed by Everett Piety and his son that they had rented the hayfield from the defendant, who was the overseer of Woosley, and that they had the right to cut the hay. On the other hand, it was the contention of the defendant that he had not rented them the hayfield, and that he, as the agent of the owner of the laud, had the exclusive right to harvest the hay.
According to the testimony of Mrs. Everett Piety, the defendant and her husband first had a fist fight about the hay. Her husband knocked the defendant down and the defendant then knocked her husband down. After this occurred, the defendant went to the house where he had been staying and came back with a twelve-gauge single-barrel shotgun. He shot her son at a time when he was unarmed and when neither he nor his father were making any demonstrations of any kind against him. After shooting Noble Piety, the defendant shot Everett Piety twice, and he was killed instantly. Neither Everett nor Noble Piety were armed or had their hoes in their hands at the time they were killed. It is true that they were still in the hayfield, which they claimed they had rented, but, according to the testimony of Mrs. *1069Piety, they were not trying to harm the defendant in any way. Then, too, the deputy sheriff, to whom the defendant surrendered, testified that he heard the defendant say to Mr. "Woosley, “I done what I told you I would have to do. I shot both of those fellows.” This was said when they first met Mr. Woosley, and the jury might have inferred from it that they had had some previous conversation about the matter.
Of course, according to the testimony of the defendant, he brought the gun back with him in order to protect himself while getting his team and carrying it away. The jury by its verdict rejected his testimony and accepted as true the testimony given by Mrs. .Everett Piety. This it had a right to do, and the testimony for the State was legally sufficient to warrant the verdict.
It is next insisted that the court erred in admitting in evidence the garments worn by Everett Piety at the time of his death.' In the first place, it may be said that the only objection urg’ed to exhibiting the garments as evidence was because the offer was made in rebuttal. No objection whatever was made that the garments were incompetent as evidence. It is well settled in this State that it rests within the sound discretion of the trial court to permit testimony to be introduced out of time, and the exercise of that discretion will not be disturbed by this court unless an abuse is shown. Wells v. State, 151 Ark. 221, and Jordan v. State, 165 Ark. 502.
Mrs. Piety testified that the garments worn by her son at the time he was killed had been burned. She had washed the garments worn by her husband at the time he was killed, and was permitted to exhibit them to the jury. The garments worn by the deceased had been admitted in evidence as tending to disclose to the jury the situation of the deceased and as tending to show upon what part of his body the bullets took effect. Hornsby v. State, 163 Ark. 396, and eases cited.
The killing of the father and son was all a part of the same difficulty, and if the defendant thought the introduction of the garments worn by the father was calculated to confuse and mislead the jury with regal'd to *1070the killing of the son, he should have objected to the evidence as being incompetent, instead of objecting merely •because it was introduced in rebuttal. Moreover, the garments had been washed, and could have served no purpose whatever except to show where the shots had struck the body of Everett Piety. The undisputed evidence shows that he died instantly after being shot twice by the defendant. The defendant admitted the killing, and we cannot see how any prejudice whatever could have resulted to him from exhibiting the garments to the jury. No objection was made to any part of the argument of the prosecuting attorney.
It is next insisted that, after the jury had retired and returned into open court, the court, over the objection of the defendant, gave 'them an additional instruction, which reads as follows:
“Well, gentlemen, we have been engaged in the trial of this case for a considerable length of time. There has been a whole host of witnesses here in attendance on the court, brought here on account of this trial, and this case ought to be decided at this term of the court, at this time, if it can be done without any jurors doing’ violence to their consciences. I do not mean in anything I say to the jury that any juror should forego or give up any firm or fixed conviction or opinion he may have, but I am trying, the best I can, to impress upon you the importance of reaching a verdict in this case if you can do so without doing violence to your conscience. 'If you gentlemen don’t reach a verdict in this case, it simply means that this case must be tried again, and the same time consumed and the same expenses incurred here; the same witnesses brought back again that were brought here this time, and the same expenses incurred that have been incurred at this time, and everything done again that is done here now. I don’t know of any more reason why any twelve men selected from this district of this county should, be any more ready, willing and able to agree on a verdict in this case than you men. You, as reasonable men, should make an honest effort to arrive at a verdict. You should undertake to reason together as reasonable *1071men'and to iron out and settle the differences of opinion, that exist between you. I realize, of course, that in a great majority of cases, when jurors go into the jury room, there are differences of opinion among them, but if you sit down and discuss those differences of opinion between, yourselves as reasonable men, having in mind the desire, and all having in mind the desire to reach a verdict in the case, you will, in a great majority of instances, be able to iron out your differences and arrive at some verdict. It is peculiarly within the province of the jury in cases of this kind to settle the case. There is no other way or manner provided by law for the disposition of this kind of a case except by a jury’s verdict, and they must be settled and decided by some jury some time or other. I am going to ask you to make an honest effort and undertake to reason together as reasonable men. If any man has an opinion about certain things, he should discuss that opinion with his fellow jurors and tell them his reasons for the opinions and views he has, based upon the law and the evidence in this case, and he should let the juror who has an adverse opinion tell his reasons for his opinion based upon the law and the evidence in this case, and then they should undertake, as reasonable men, to iron out the differences of their opinions, and try to arrive at some verdict. Criminal trials are always expensive, and the bigger the trial, the more time it takes, and the greater number of witnesses in attendance, the greater is the expense. I am going to ask you gentlemen, to go back to the jury room and, as reasonable men, undertake to reason together and iron -ujt your differences in this case and arrive at some vermut. I’ll pass back your forms of verdict to you and the instructions. If there is anything else you gentlemen desire or any other aid that might help you in this case —how do you stand with reference to numbers, without saying whether you are for the defendant or for conviction or acquittal? ' Don’t say, if you are divided that way, how you stand, except just with reference to numbers.”
*1072This court has held that the circuit court in its discretion may admonish a jury which has been unable to agree to -weigh the opinion o£ the majority. St. L. I. M. & S. Ry. Co. v. Carter, 111 Ark. 272. But it is prejudicial, however, for the trial court to use language from which the jury may reasonably infer that the court intimates that the minority should yield their opinion to the majority. Simonson v. Lovewell, 118 Ark. 81, and J. F. McGehee & Co. v. Fuller, 169 Ark. 920.
This court, however, is committed to the general rule announced in a case note to 11 Ann. Cas., p. 1134, to the effect that the trial’ court may detail to the jury the ills attendant upon a disagreement, the expense, the length of time it has taken to try the case, the length of time the case has been pending, and that the case will have to be decided by some jury upon the same pleadings and in probability upon the same testimony.
Again, in a case note to Ann. Cas. 1915D, p. 675, the general rule is stated to be that the tidal court may detail to the jury the ills attendant on a disagreement and the improbability of securing a more honest or intelligent jury to try the case again in the event of a mistrial, and the evils of a hung jury generally.
This court has, in effect, adopted the general rule just stated, and has held that the trial court may warn the jury to lay aside all pride of opinion and consult with each other for the purpose of harmonizing their views, if possible, under the evidence, and that it was their duty to apply the law as given by the court to the facts in the case and deal with each other in a spirit of candor in order to arrive at a verdict. Evans v. State, 165 Ark. 424; Benson v. State, 149 Ark. 633, and cases cited; Mallory v. State, 141 Ark. 496; and Clarkson v. State, 168 Ark. 1122.
There was nothing in the instruction in the case at bar which tended to coerce the jury. It merely admonished them as to their duty in harmonizing their views, and did not contain any statement that over-emphasized the importance of an agreement. It will be noticed that *1073the court did not in any sense advise the jury that an agreement should be reached in, violation of the honest conviction of any of the jurors.
We have carefully read and considered the record, and find no reversible error in it. The judgment will therefore he affirmed.