1066.

#### Lewis *v.*The State.

' Indictment for murder — conviction of manslaughter, from Terrell superior court — Judge Worrill. February 7, 1908.

Argued March 31,

Decided April 9, 1908.

Carrie Lewis was convicted of voluntary manslaughter, under an indictment charging her with, having killed John Lewis by cutting him with a knife. She moved for a new trial, on the grounds that the verdict was contrary to law and the evidence and without evidence to support it; the motion was overruled, and she excepted.

At the trial J. L. Murray testified: “Carrie Lewis was John Lewis’s wife. John Lewis died on Mrs. McCarthy’s place. . . All I know about the killing is what Carrie Lewis told me. She came up to the house that night about nine o’clock, and said that John Lewis was fighting her. . . She said she couldn’t live with John any more, and Mrs. McCarthy told her to go on back and behave herself, and she said ‘No,’ that she would not go back, but finally said she would go back if I would go with her to John. . . I said to Carrie, ‘What did you do to John?’ She said ‘I cut him. I cut him twice.’ I went on down there and found him lying right side of the road. As to what he was doing at the time she cut him, she said that she wanted to go to church and he objected, that she started to church and got a part of the way, and he overtook her and another negro woman down there near a negro house, and told her that she could not go. She said he caught her by the hand and pulled her along back up near another negro house, and right there she and another negro woman sat down, and that he left them, but came back in a little while and started to fussing again. She said he hit her with a -switch, and then she snatched away and got away from him. She said that John then run across the road and pulled off a paling and ran and overtook her, and started to hit her with it, and that she wheeled and clinched with him and cut him. She said he then kept on after her, that she then cut him again and wheeled and ran up to the house. ., . John Lewis was dead when I got to him. It was about ten or fifteen minutes after she came to the house before I got to him. *220I found him about 150 or 200 yards from our house, . . a short distance from his house and yard.” “The only wound I saw on John Lewis was on his left shoulder; he was lying on his face. . . "When I first saw him he was lying on his face and I did not see but one wound, but afterwards I went back and he was turned over/ when I saw a wound on his left breast. It was a stab, and I suppose it went tó his heart. They had Dr. Lewis at the coroner’s inquest to see him. I would say that the stab in John Lewis’s breast was the cause of his death. I asked Carrie Lewis what she cut him with, and she said a knife, and she took it out of her jjocket and handed it to me. It was a two-bladed knife. It was a good big knife and it was closed when she handed" it to me. That was all she said at the first conversation when she came up to the house. In regard to what she said about cutting him the second time, she said that he had run after her and caught up with her with the paling, that she clinched with him and stabbed him, then got loose and ran up to the house. I didn’t see any bruises on her; in fact she did not say anything about any bruises being on her at that time. . . John Lewis was found south of Mrs. McCarthy’s house about 150 yards; it is about 175 or 200 yards further south where Carrie said John caught hold of her hand. Carrie said she was sitting down with this woman between Joe Alston’s and Tom Leonard’s houses. Joe Alston lived nearest to Mrs. McCarthy’s, and about 350 or 400 yards south of the house. It is 75 or 100 yards from Joe Alston’s house to Tom Leonard’s house; it is 150 or 200 yards from Tom Leonard’s house to where the killing occurred. There is no other house this side except John Lewis’s. The paling was taken off Joe Alston’s fence. I after-wards noticed Joe Alston’s fence and saw where a paling had been taken off. . . A paling was found near the body of John Lewis. That looks like the paling; I think it is the paling [referring to a paling afterwards introduced in evidence]. As to whether that would be a dangerous weapon in the hands of a strong man, I would say that it would hurt a person pretty bad. It is according to how you would use it as to whether death would likely be produced with it. I suppose death could be produced with it. It was about 175 yards from where the paling was pulled off the fence to where John Lewis was found dead, directly up the road. .

*219Russell, J.

The evidence in its entirety showing that the defendant was 'justifiable, the verdict finding her guilty was, for want of evidence, contrary to law, and a new trial should have been granted.

*Judgment reversed.*

*220I suppose that paling is about five and a half feet long; it is *221about four inches wide at the bottom and three inches wide at the top, . . about half an inch thick at the narrow end, and about three eighths of an inch thick at the wide end. It looks to me.like a light sap-pine paling.” “It has two nails,in it and the lower end is split. . . The split end is the one the nail is in, and it is just as I found it. . . It had rained that day. .If the paling-was wet it would be heavier. John Lewis weighed about 160 pounds and was about five feet and nine inches high. He was a strong man!' Carrie Lewis weighed about 120 pounds.”

Emanuel Patterson testified, that on the night John Lewis was. killed he saw Carrie Lewis and Fannie Reddick going along the-road in front of Tom Leonard’s yard, southward, in the direction of a church, and that they stopped in the road; that he went up the road and met John Lewis coming down the road, and John asked if he had seen any women going down the road; that he told John that they were down the road; that John went on and soon came back with Carrie Lewis and Fannie Reddick, and they stopped near Leonard’s house. “John was standing talking to his wife; she walked on up the road, and after a while he took out behind them. They were not running when I saw them. She was running and he was walking fast. She went towards Mrs. McCarthy’s house and was running. I do not know what he had in his hand; I didn’t see anything. I wasn’t looking for anything; do not know what Carrie had in her hand, and do not know what occurred down the road between them. . . I saw John Lewis after he was killed. Mr. Murray, Tom Leonard, and myself got there about the same time. . . He lived a minute, I reckon, after I got there. It was about fifteen or twenty minutes after I saw him going up the road with Carrie Lewis and Fannie Reddick before I saw him dead.” J. W. Shepard testified as to .a fence paling found, in the road near where one had been taken from Joe Alston’s fence, and’ as to a peach-tree switch and broken pieces of switches found near the same place. His testimony -as to the paling was in substance the same as that of the first witness. No other witness-than those mentioned was introduced by the State.

Joe Alston testified, that .on the night John Lewis was killed, John Lewis caught up with Carrie Lewis, when she was on her way to church with Fannie Reddick, and caught hold of Carrie’s hand, and told her that she could not go to church, and said, “If you go-*222to church to-night you will go over my damn body;” that John held her by the hand and talked to her about ten minutes, and then turned her loose, and they went up the road towards home; that he heard them fighting and heard a noise like the lick of a paling; that they got a paling off his garden, but he did not know which one had it; it was about 40 yards from the house of the witness, where he heard the sounds of the paling. — Fannie Reddick testified, that John Lewis overtook Carrie Lewis and herself in the road, when they were on their way to church, and told Carrie to go back home, threatened to beat her if she went to church, said that if she went to church she would go over his dead body, and hit her with a switch; that Carrie got loose from him and ran towards the house, and he jerked off a garden paling and ran after her; it was dark and the witness did not see what occurred between them afterwards. The accused made the following statement to the jury: “I cut my husband with a knife. I asked him to let me go to church, and he didn’t say that I could go or that I couldn’t go. . . When I got ready to go to church I asked him if he was willing for me to go, and he said, ‘I reckon so.’ We went on down the road and sat down, side the road beside Tom Leonard’s house, and I heard him in the cane patch, coming across the patch, and he was talking scandalous. He come on up to where we were, and he said, ‘You are not going to that church to-night; if you do, you will go over my dead body.’ And he got hold of a stick and run at me and hit me on this arm and knocked the skin off, and I jerked loose from him and run up the road toward the house, and he run across the road and jerked off a paling off the garden, and I run to get to the house, to Mrs. McCarthy’s and them. He overtook me and struck at me that way. Then I run under him and struck at him with the knife. I was scared of him and was scared lie was going to kill me. I knew that he would hit me with anything that he could get in his hand.”

Cited by counsel for plaintiff in error: 89 *Ga.*140; 92 *Ga.*d02 (5).

*E. A. Wilkinson,*for plaintiff in error.

*J. A. Laing, solicitor-general,*by *Reuben R. Arnold*and *J. B. Ridley,*contra.