#### Baker *v.*The State.

No. 3336.

December 22, 1922.

Indictment for murder. Before Judge Irwin. Walker superior court. June 10, 1922.

Balph Baker was indicted in Walker county for the offense of murder, the charge being that he unlawfully, wilfully, and maliciously shot and killed Joseph W. Morton with a pistol. On the trial the material evidence submitted in behalf of the State was substantially to the following effect. Mrs. Phillips, a daughter of Morton, the deceased, testified that on March 18, 1922, she and her father were standing, near the corner of the depot at Durham station in Walker county, talking, when Balph Baker and his brother George came up to them, and George shook hands with her father and asked, “Is this Mr. Morton?” Morton answered, “Yes,” and asked, “Who are you?” George did not tell him, but said, “You have a warrant for us, have-you?” Morton said, “No, boys, I have no warrant for you.” George said, “ God damn you, serve it if you think you can.” He still had Morton by the hand, and hit him in the face. Morton pushed him off. Balph Baker was standing with a gun behind him, and he drew it and shot Morton, who shook his head. When George Baker straightened up, according to the witness, “ he came out with his gun, and they were both firing' at father at the same time, and after father was shot he *728reached for his gun and pulled it out and began-firing at them. . . After Ralph Baker had got to the corner he turned around and shot back at father. . . I grabbed my father in my arms and helped him in the depot and sat him down on the seat, and he died in my arms in about two minutes. When I ran to him I says, ‘'Oh, papa, they have killed you/ and he says, ‘ They have got me/ That’s all he ever spoke. . . I first saw the pistol on the train. And when George shook hands with my father I stepped back and saw Ralph with it behind him in his hand. When father pushed George back, just as Ralph got back far enough out of the way, Ralph shot my father. . . The first shot struck my father in the chin in front. My father at that time did not have any pistol; his hands were not about his pockets. My father first got his pistol when George got his, after Ralph had shot him. This shooting occurred in Walker county, Georgia. . . The bullet wounds from the pistol caused the death of father. He had three wounds. I saw them all; one in the chin, and two in the neck, and he died from these wounds about two minutes after they were inflicted. . . My father had it [his pistol] in a scabbard down on his hip there. I don’t know how-many shots my father fired. George was shooting too. My father was shooting at Ralph and George both. My impression is that Ralph was the one that shot first. . . George and Ralph were about two steps apart'. They were stepping around during the firing, and my father was stepping also, all moving about. Ralph didn’t seem to be dodging. He had his gun this way, directly. He said, ‘ God damn you, I am not scared of you/ to my father. He had already shot father, and my father had the pistol and was shooting at him at the time. I don’t think Ralph moved right then. My father pushed George back, George fell down to his knees. No shot had been fired up to that time. George had arose before my father shot. Ralph had fired after my father pushed George down. My father and I were standing right at the road. There was a little ditch between us and the road. When George hit at my father, my father pushed him back with his hand, and George staggered into the ditch and fell to his knees on account of the ditch, and when he got up he had the gun. My father was 66 years old, and was acting as deputy sheriff of Walker county. My father was a larger man than George. George is smaller than the. defendant Ralph, who is two' or three inches taller.”

*727Fish, C. J.

There was no evidence to authorize an instruction as to the law of voluntary manslaughter; and therefore it was not error to fail to charge on that subject. None of the exceptions to the instructions complained of was meritorious. The verdict was authorized by the evidence, and the court did not err in refusing a new trial.

*Judgment affirmed.*

*All the Justices concur.*

*729Peterman, a witness for the State, testified that he was a passenger on the train with George and Ealph Baker on their way to Durham. George had a pistol, and endeavored to force witness to take a drink of whisky by sticking a pistol against his stomach. Ealph was present, but made no effort to make George " quit poking the gun towards” the witness.

McCurdy, a witness in behalf of the State, testified that he was conductor of the train on which George and Ealph Baker went to Durham on the day that Morton was killed. He saw Ealph with a pistol when he was about 125 yards from Morton. "He had it sorter under his coat. . . • I don’t know whether I saw Ealph and his brother when they reached Mr. Morton or not. The first I noticed was his brother either slapped at Mr. Morton or hit at him. I saw the shot. I saw Ealph and Mr. Morton shooting. I did not see the first shot, nor know who shot first; but immediately after the first shot J looked and seen all the balance of it. George’s back was to me. I seen him all the time, but could not tell what he was doing. Ealph was shooting at Mr. Morton, and Mr. Morton had his pistol out then when I first saw them. Mr. Morton was shooting both at Ealph and at George, going from one to the other, that way. I can’t say whether he shot first after I looked or not; it was all done this way. When I looked up, I was attracted by the sound of the shot, and Mr. Morton was shooting and so was Ealph. Both of them were shooting; and only one shot had been fired before I looked up. Mr. Morton had his pistol sorter this way. As quick as I heard the noise I looked right straight up. It was not a quarter of a second, just as quick as I could look up. I did not see George do any shooting at all; only seed him fall; only seed Mr. Morton push him down; don’t know what had occurred up to that time. I don’t know how many shots were fired; it was done in quick succession, as fast as you could bat your eye; sounded like a bag of fire crackers lighted and thrown down on the ground and popped off one right after another. . . Immediately after this shooting was over, Mr. Morton turned and walked into the depot. Either Ealph or George Baker, I don’t know which, remarked, c Is that hot enough for you, or do you want some more just like it? ’ And they turned and walked across the railroad-track and started off.”

Terry, a witness for the State, testified: “ I was about 30 yards *730from where the men were when the shooting began. I saw it begin. Balph shot first at Mr. Morton, who had just shoved George out of the way, and Balph did the shooting. At the time Balph began shooting I did not see Mr. Morton’s pistol. He leaned over like this, and came up and pulled it and began shooting just promiscuously. As the boys walked up to Mr. Morton I saw George walk up to him and stand for a moment and then begin knocking at Mr. Morton, or slapping at him, and Mr. Morton was kinder warding off the licks, and he kept that up for some little bit, and Mr. Morton kept shoving him out of the way, and my attention was called to Balph because I knew he had a gun, and when I looked at him he was standing with his gun behind him like that, and as soon as Mr. Morton — Directly Mr. Morton shoved George out of the way, and it seemed he dropped on one knee and got up and got back further, and Balph leaned over like that and shot Mr. Morton, and then Mr. Morton went down like this, and came up and began shooting. . . Balph fired very rapidly several times. . . I first saw Balph’s pistol when the boys got off the caboose. He had it under his jumper-jacket, in his hand, with the barrel just protruding under the coat. I watched him as he went on up toward Mr. Morton. He did not have the pistol in his hand then. He put his gun in his pocket after lie had the trouble with Mr. McCurdy and myself. Immediately after this shooting I made an effort to communicate over my telegraph wires to Chickamauga. They were grounded, making it impossible for me to send a message. I left there about an hour before the train came. They were all right at that time. . . The telephone wires are in the commissary, in the Durham Coal and Iron Company’s store or office; and it was out of commission that day. The weather was all right. No storm or anything like that.”

The statement made by the accused to the jury was as follows: “ Well, gentlemen of the jury, I started up to visit my sister, and George and his wife started up to visit his wife’s people, and George gdt a hold of this whisky and got just crazy on it, and I took it away from him and also the pistol. I thought I could control myself better than George could, and control him also; and him and Mr. Morton got into it some way; he was in front of me going on, and Mr. Morton and him got into it, and Mr. *731Morton shoved him down backwards and shot at him, got his pistol from his right side and shot at him, and the reason that I shot — I shot to protect my brother’s life. I didn’t have anything against Mr. Morton; so sorry it happened. I reckon that is all there is to it that I recall just now.”

The jury found the defendant guilty of murder, and made no recommendation to mercy. He was sentenced to be hanged. He moved for a new trial, which being refused, he excepted.

*B. M. W. Glenn*and *O. N. Chambers,*for plaintiff in error.

*George M. Napier, attorney-general, Eugene S. Taylor, solicitor-general, Seward M. Smith, assistant attorney-general,*and *Bosser & Shaw,*contra.