10669.

#### Rivers *v.*The State.

Decided November 5, 1919.

Indictment for murder; from Clay superior court—Judge Worrill. May 10, 1919.

Charlie Eivers killed Isaac Timmons, and, under an indictment for murder, was convicted of voluntary manslaughter. The charge of the court as to manslaughter was complained of in the motion for a new trial, on the ground that it was not authorized by the evidence, and “was therefore prejudicial to the defendant, in that it afforded a means of compromise to the jury.” From the evidence 'it appears that the mother and two sisters of Isaac Timmons had been riding in the automobile of Eivers, -with Eivers and Tolbert, and on their return at night, and when near the Timmons residence, the automobile stopped, because of a flat tire, and Eivers was trying to fix the tire, and Maude Timmons was standing near with a lamp, when Isaac Timmons was seen in the road approaching them. Mrs. Timmons walked towards her son. She testified that he said, “Now you have played the devil,” and told her that she had gone off without cooking his dinner or supper.” When she replied he said she had told “a damned lie.” As to what then occurred she testified: “I called the girls. . . I told Maude and Annie Eee to go on home with me, and one of them *366said, ‘Let’s ride;” they had the car about fixed then. . . Isaac said, ‘I will see whether you ride or not,’ and so he walked back down the side of the road and broke a switch or stick like, and came back to where they were, and had the switch in his left hand pulling the limbs off of it with his right hand as he walked back up there; and as he walked up near them Charlie.Eivers said, ‘Don’t hit those girls,’ and Isaac Timmons said, ‘What in the devil’ he had to do with it; then Charlie Eivers shot him. When he was shot he turned and went on to Eay Wilkerson’s. I went with him. Isaac . . had his hands on his stomach and hollered that he was shot, . . to send for the doctor, that he was dying. . . When he got there he just lay over on the porch and reached back in his right-hand hip-pocket and got his pistol out and laid it on the floor. . . Mr. Garrison got there and said, ‘Why didn’t you shoot the damned rascal?’ ‘I couldn’t get it out.’ . . He said that Charlie Eivers shot him for nothing.” “He broke the stick to make the girls go home. . . Maude never run, the other one run. . . Maude jumped in front of Charlie Eivers and held her arms out this way, and said, ‘Don’t shoot buddy.’ When Isaac went round she run around Charlie Eivers.” The witness, when asked, “Did you hear Isaac Timmons say, ‘God damn you, I am going to kill you?’ answered, “He may have said that. I called him about the time and said, ‘Behave yourself and come on here, Isaac,’ and immediately the pistol fired. . . I did not see Isaac Timmons’s pistol until .he got to the house. . . He could have had a pistol in his hands; he was standing behind Maude. . . When I spoke to him he made a motion and I thought h&.was going to throw the stick and hit some of them, but he may have drawn his pistol.” Maude Timmons testified that Isaac ran around Charlie Eivers to where she was, “and Charlie Eivers said, ‘Don’t hit those girls,’ and Isaac said, ‘What have you got to do with it? God damn you, I will kill you.’ At that time I looked back at Charlie Eivers and he had his pistol, and I jumped in front of him; when the pistol fired I was standing in front of Charlie Eivers. . . My back was to my brother . . I said, ‘Don’t shoot buddy.’ I did not hear but one shot fired there.” Tolbert testified that when Charlie Eivers said to Isaac, “Don’t hit those girls, please don’t,” Isaac stopped and said, “What in the hell have you got to do with it?” and ran his hand in his bosom *367and pulled out his pistol, and said, “God damn you, I will kill you,” and Charlie Rivers pulled a pistol from his pocket and shot Isaac Timmons. Isaac did not shoot, and he did not snap his pistol at Rivers, so far as the witness knew. The defendant, in his statement at the trial, said: “Isaac said to me . . ‘God damn you, I am going to kill you/ and he throwed his pistol on me, and I pulled mine out of my side pocket, and Maude jumped between us, and I shot him.”

*365Broyles, C. J.

Under the evidence and the defendant’s statement the law of manslaughter was not involved, and the court erred in instructing the jury upon that law.

*Judgment reversed.*

*Luke and Bloodworth, JJ., concur.*

*367
      *P. 0. King, A. L. Miller,*for plaintiff in error.

*B. T. Castellow, solicitor-general, B. B. Arnold,*contra.