No. 49.

#### Newton J. Carr, plaintiff in error, *vs.*The State of Georgia, defendant in error.

[1.] Where the evidence would justify the Jury in finding the defendant guilty of murder or manslaughter, and the verdict isfor the minor offence, it will not bo disturbed on the ground that it is contrary to the testimony.

Manslaughter, in Hancock Superior Court. Tried before Judge Baxter, April Term, 1853.

This was an indictment for the murder of George W. Young- . blood, and a verdict of guilty of voluntary manslaughter. A new trial was moved, on the ground that the verdict was contrary to the evidence, and refused by the Court. This refusal is the only error relied upon in this Court. The. following is the brief of the evidence returned in the transcript of the record :

IT. B. Youngblood, sworn, says he was not present at the house of the killed, hut about 350 yards from the house, when the killing took placo; was at old Mr. Simmons’; saw Carr coming down the road towards Youngblood’s, got down the lane about 130 yards of Youngblood’s house, stopped, and there stood some time ; got sorter behind somo brushes for a while; could hear voices, Carr making a fuss, and in the time of the fuss, a pistol was fired; soon as the pistol was fired, Carr started off round the fence and Youngblood came out of the house, started off like he was going round towards his mother-in-law’s ; soon as Carr started, Youngblood came into the road ; when Youngblood came into the road, Carr got over the fence and came meeting Mr. Youngblood. When Carr got over, Youngblood, they both got over about the same; they came meeting one another, they came running until they got within four or five foot of one another, and the jfistol was fired. They clinched soon as they fired and swung each other round, and until the women separated them ; when the women pulled them loose, Carr reared about smart and got loose from them; he, Carr, then went up to the house of Youngblood, to *329the yard gate, then started from the gate down the road towards me, and before he got to me, he toolc through the woods ; never saw Carr any more ; witness went then up to where Young-blood was lying, and Youngblood asked witness to carry him to the house, which witness did, with the aid of Simmons and his son ; the wound was about the stomach or below ; he was alive for an hour, at which time 'witness left; did’nt examine the wound ; saw no weapon about Youngblood or about the place, did not see his clothes removed; saw Youngblood about midnight, he was then dead; witness was about 350 yards from the place where the fight was ; does not know what day of the month, but it happened in December last, in this County, ondhe Sabbath day.

Cross-examined: — It was 350 yards from Simmons’ to Youngblood’s ; 60 or 70 yards from Youngblood’s house to the lane that turns down to Mrs. Lewis’; Carr had just started down the lane when Youngblood came out of the house ; he had gone down the lane 10 or 15 steps before he got over the fence; from Youngblood’s house to where they met is 75 yards. Y’s house is on the Milledgeville road ; came out the front door, had but one fence to get over after coming out of the yard gate ; from where Carr got over the fence to where they mot, was about 30 steps ; Carr was about two hundred yards on the road towards Milledgeville from the road to Mrs. Lewis’ when witness first saw him; Mr. Simmons’ house is about twenty steps from the Milledgeville road; witness was in Simmons’ house when he first saw Carr coming down the road ; saw him through the window; stayed in Simmons’house till Carr started-off towards Mrs. Lewis’; tlieré was nothing but a little bunch of bushes just where Carr turned off to Mrs. Lewis’, but not enough to keep him from being seen ; there were deadened trees in a field-betw-een, but not enough to keep him, witness, from seeing Carr ; the first pistol fired, was fired right where the path to Mrs. Lewis’ turns off; when witness came out of Simmons’ house, he went out into the yard, not to the gate, not half way; did not hear Youngblood say anything as he came out of the house; he went on over the fence between a trot and a run, *330his wife came out of the house with him, she was close to him, did not see her hold of him, she was right close to him, might had hold of him, but did not see her have hold of him ; looked like she was trying to stop him; never heard him say anything to her, nor heard her say anything to him ; witness was not near enough to hear who was asking, or what was said; she was close by him when the pistol fired, could hear but could not understand what was said; two or three young Miss Lewises and Mrs. Bethea, came out of the house shortly after Young-blood and his wife ; they were on behind a little piece, ten or twelve steps; they did not come over until after the fight, or they had met; did not see anything in Youngblood’s hands as he came out of the house; could not determine at this'distance who fired the pistol; they got over the fence about the same time; there was nothing to interrupt the view between witness and the parties, a few scattering pine trees in the field; witness was on one field and the parties on another, no hill between; the women hallowed for us to come over as soon as the pistol fired; Simmons was in the yard with us when the pistol fired ; Carr’s wife, Bethea’s wife, Youngblood’s wife, Mr. Simmons and Mrs. Simmons, Celestia Ann Lewis, were there when witness got there, Simmons and wife going with witness, or a little ahead of witness ; Carr’s wife was with him when witness first saw them coming down Milledgeville road; Carr, after the fight, came out to Youngblood’s gate, stopped a few minutes, went down the road and turned out in the woods; witness was coming down the road from Simmons’ when Carr turned out.

BY THE STATE.

The field in which the parties met, is right in front Young-blood’s house; they met about 30 yards from the road in front of the house, in the field; Mr. Simmons was cultivating the field; the house and field belong to Simmons; Youngblood died at his house in this County.

*331DEFENCE.

Youngblood rented only tbe, . bouse of Simmons, had let Youngblood turn bis horses in tbe field; it was thirty or forty yards to where Youngblood got over tbe fence, from tbe bouse up the road towards Milledgeville ; Youngblood was going out to where Carr was, when be got over tbe fence ; went in sort of a trot.

BY THE -STATE.

Simmons’ bouse is nearer to Sparta than Youngblood’s bouse; it is sixty yards from Youngblood’s house to the road turning off to Mrs. Lewis’; Youngblood’s house is on the right band side of tbe road from here to Milledgeville, and tbe field in which they met is on the left.

BY THE DEFENCE.

Witness is second cousin to George M. Youngblood, deceased.

Mrs. Eliza J. Bethea, sworn, says she witnessed tbe fight between prisoner and deceased, on tbe 7th of last December, in this County; was at Mr. Youngblood’s ; went between 12 and 1 o’clock that day; Celestia Lewis, Mr. Youngblood’s wife and two Miss Youngbloods were there ; witness was at Mr. Youngblood’s window when she first heard Carr hallowing, going round the farm, making some noise, did not hear him curse or swear; Youngblood was eating his dinner, heard a pistol fired between 12 and 1 o’clock; before she heard Can-hallow, the report sounded from towards .Carr; when she first saw Carr he was going round the fence of Mr. Simmons towards witness’ mother’s, Mrs. Lewis’; had got about fifty yards down the fence when she saw him ; his wife and child were with him ; Carr got over Simmons’ fence, when Youngblood run after him; Youngblood and Carr met thirty yards from where Carr got over the fence, was in the field running across towards Carr. The field is Mr. Simmons’ in front of Young-blood’s house; Carr got over the fence and came running towards Youngblood’s ; they came meeting one another; Mr. *332Carr run meeting Youngblood, and met him about thirty yards from where Carr got over the fence ; witness was in the stage road to Milledgeville, in the corner of the fence, when the pistol was fired ; Mr. Carr fired the pistol; the pistol was a revolver with several barrels ; the parties clinched after the firing ; when the fight was about over, witness went where they were ; saw Youngblood fall about five minutes after the pistol fired ; witness was examined on the inquest. When Young-blood heard the first pistol, he asked his wife who it was fired it; she said it was Newton,'going round the fence to his mother’s. Youngblood jumped up, took his pistol off the shelf and run out; said he would fix him before he was done; did not see Youngblood draw any weapon in the field ; he run out of the house with his knife and pistol' in his hands, and his wife tore a part, say half, of his coat off him trying to keep him back; Youngblood took his pistol; witness does not know whether it was loaded or not; witness says that she thinks she would recollect what she swore to before the Coroner’s inquest; witness says that she did not know whether Youngblood’s pistol was loaded or not; when the pistol was brought out of the field, and was examined by Mr. Henry Youngblood, the cap was bursted; heard but one report of pistol in the field, heard but one after Youngblood left the house; while witness was cutting deceased’s hair, the deceased told witness that they, Carr and deceased, had had a quarrel that morning, and that deceased did not think Carr would take from any man what he took from deceased that morning, and that it was not done with yet; did not hear him say anything after he left the house; Mr. Carr’s wife was in the field at the rencounter, but Mr. Youngblood’s wife had not got into the field ; was in the road with witness; witness’ sister, Celestia, was climbing the fence when pistol fired, or during the fight; the parties met about thirty yards from the fence where Carr got over, and about the same distance from witness, where the fight took place; witness was also about thirty yards from where the parties met; Youngblood got over the fence a.bout twenty or thirty yards between where witness was standing; Mr. Carr’s *333coat was off. Youngblood had on a piece of his ; Mr. Young-blood’s wife got the pistol from them and carried it to the house. Witness did not see Youngblood try to take the pistol from Carr; saw the wound; it was on the lower part of the breast; Mr. Youngblood, Mr. Simmons, and a negro, carried him to the house ; left him about one hour by sun, he was alive then ; Mr. Youngblood took the pistol from Mr. Carr ; saw Mr. Youngblood’s pistol at the house, and witness saw one lying by him on the ground; saw Youngblood run out of the house with it, picked it off the shelf as he went out; it was a single barrel.

CROSS-EXAMINED.

Witness says she cut Mr. Youngblood’s hair that morning; he said he had a difficulty with Carr; that he did not think Carr would take what he had said to him, from any man, and it was not done with. As soon as Youngblood’s wife told him Carr was going around the fence to his mother’s, Youngblood was eating with Mr. Carr’s knife ; he jumpedup andrun out, taking his knife and pistol in his hand; the knife exhibited to witness looks like the same knife with which Youngblood was eating, and thinks it is. His wife, and witness, and all, tried to detain Youngblood ; his wife tore his 'coat off of him trying to hold him, and he swore as he went out that he would fix, or some such word ; the skirt of his coat was torn off at the yard fence before he got into the road; he jumped the yard fence, did not go through the gate; got over two fences to get into the field ; when he got into the Milledgeville road, he went twenty or thirty yards down the road before he got over the fence into the field; Youngblood got over the fence first; Youngblood went in a run from the time he left the house till he got to Carr ; did not see Youngblood make any licks or threats at Carr; they were catacornered across the field from witness; the parties were right together as the pistol fired, they were together; the knife was in his hand when he left the house ; Mr. Carr’s wife was the only person in the field at *334the time of the fight; did not hear anything said by Young-blood as he went down towards Carr.

Henry Youngblood, recalled: — Heard a gun of some kind that morning; saw the pistol of deceased after the fight; did not blow through the pistol of the deceased, to see whether it was loaded or not; the report of a gun he heard that morning was in the direction of Mr. Youngblood’s.

James Thomas and Kenan, for plaintiff in error.

Sol. Gen. Weems, represented by Cobb, for defendant.

*By the Court.*

Lumpkin, J.

delivering the opinion.

[1.] In the opinion of the Court, the evidence, in this case, would have justified the Jury in finding the defendant guilty of either murder or voluntary manslaughter. Their verdict is for the minor offence — we will not disturb it.