10405.

#### Hudson *v.*The State.

Decided November 4, 1919.

Indictment for murder—conviction of manslaughter; from Gilmer superior court—Judge Morris. February 14, 1919.

Plato Hudson killed Miles Watkins. The only eye-witness of the homicide who testified at the trial was Andrew Sluder, at whose house it occurred. This witness testified, that the defendant was his brother-in-law and came to the house with him at his invitation, and went into the kitchen to get some water, and remained in the kitchen until the wife of the witness called for supper; and after supper the defendant went into the sitting-room, in which were Miles Watkins, Henry Hudson, and the witness; that Miles Watkins, who was seated in the only chair in the room, rose and offered the chair to the defendant; that the defendant said he did not want a chair, and Miles sat down again; that after this "they said a word or two to one another;” the witness did not remember what was said, but he did not think they were quarreling. The next thing the witness remembered was that Miles asked the defendant what he had against him, and the defendant replied that he had nothing against him, and asked if he (the defendant) had not always treated Miles right; Miles said, "Yes,” and asked if he had not always treated the defendant right. “Both said they had treated one another right.” Then Miles said, “It looks God damn suspicious you have got something against me; you are following me around.” The defendant said, "No, Miles, I haven’t got anything against you.” Miles had risen from his chair near the fire-place, pushed the chair back, and put his *311hand behind him. The witness testified: “About that time I saw they was getting mad, and I stepped up and said, ‘We don’t want any trouble,’ and Miles run his hand behind and Plato stepped back.” When Miles put his hand back he pulled a knife out of his pocket. “There was a word or two said,” and “then Miles says to Plato, ‘I will cut your God damned throat,’ and Plato says, ‘No, you wont, put your knife back in your pocket,’ and he says, ‘If you come on me with that knife I will kill you,’ and Miles says, ‘You are plenty mean enough, but,’ he says, ‘you aint got the nerve;’ and by that time I was between them and pushed Plato back and Miles both, and by that time Miles made a strike like that, and Plato saw that and was on the outside of the door, and the gun fired in my face, and Miles walked on after him. The gun come from back behind Hudson somewhere. . . I don’t know whether it come from out of his pocket. . . That was right along somewhere along about the same time the knife was drawn; he stepped back against the door-facing like that, and he had his hand in his pocket before Miles pulled his out. I don’t know which one it was drew first, because I was standing between them; anyhow Miles got his knife out and had it in his hand, and Plato was standing back there and had his hand back here. When the first shot was fired Plato was standing . . on the outside of the door. . . I was standing right against the door and had done pushed Plato back and had pushed Miles back and told them I didn’t want no trouble there. I pushed Plato and Miles back that way and the gun fired in my face and I stepped back. . . Plato [was] just on the outside of the door somewhere, may be back nearly to the far end of the porch; it was all done so quick you couldn’t tell exactly how it was. . . When the second shot was fired Miles was on the outside of the door and Plato Hudson had done went back that way. Miles had made a strike like that, and Hudson was still on back there right then.” “When the first shot was fired Plato was out on the porch.” Three shots were fired, and Hudson was wounded three times, once in the left hand, once in the neck, close to the Adam’s apple, and once between 'the eyes. He fell at the last shot, and died immediately. The shots were in quick succession, “just about like you could count three.” The witness could not tell whether Miles ever reached Plato or not; “they were right in there together.” “There were no injuries on *312Plato.” Mrs. Sluder came out of the kitchen after the killing, and the defendant said to her, “Rindy, I hate that. I am sorry I done that, I 'wouldn’t have done it on your account for ten thousand dollars.” The witness thought that Plato said also, “It don’t frighten me,” or “don’t scare me to do this” shooting. These statements were made in a few minutes after the shooting, “just in about the time” the wife of the witness could have walked out there. The witness further testified: The knife was open when Miles “made his strike and said he would cut [Plato’s] God damned throat; they had started about that time; he had done started towards Plato with his knife open just like that. . . At the time Miles raised up, Plato was standing in the door; if he had a pistol in his hand at that time I didn’t see it.” At the time Miles made the advance and made the lick he said he would cut Plato’s damned throat, and Plato backed out of the door. “ Miles advanced to the door then and made a lick at the door, and Plato was backing all the time and telling him not to come on to him with a knife, that he would kill him. Miles was following him with a knife in his hand. When the first shot was fired Miles advanced right into him. . . Another lick was made and [Plato] shot the second time. Miles made another lick at Plato and he shot another time; he still continued to back to one end here, and Miles made another lick. Then at the time he made another lick Plato fired again and Miles fell with his head towards Plato, with his knife in his hand, open. . . Plato did not curse Watkins there that night that I heard, neither did he threaten him.” At the time Miles threatened to cut Plato’s throat “Plato hadn’t done anything, only he stepped back in the door and put his hand in his back here, about his coat. I never saw nothing in Plato’s hand then as I stepped between them. When Plato fired the second shot he had backed six, eight or may be ten feet, . . may be twelve or fifteen feet. Watkins was advancing on him all the time. When tire third shot had fired he had backed some fifteen or twenty feet when the smoke raised up; he was then on the end of the porch, . . right against the washstand. . . There wasn’t a shot fired in the room at all.” The witness testified further as to the relative positions of Watkins, Hudson, and himself, the dimensions of the room and the porch, etc.

*310Luke, J.

The defendant’s conviction of voluntary manslaughter was unauthorized by the evidence, and the court erred in refusing to grant a new trial.

*Judgment reversed.*

*Broyles, O. J., and Bloodworth, J., concur.*

*312James M. Patterson testified as to the defendant’s threat “to *313get five or six” persons not named, wbo had caused his wife, and himself to have trouble. The witness said nothing as to when the threat was made. Rufus Carroll testified that in the spring preceding the killing of Watkins, which occurred in December, he heard the defendant say, in regard to Watkins, that he (the defendant) was “going to shoot his horns oif.”

The defendant, in his statement at the trial, said that he shot Watkins to save his own life; that it seemed he had. to do it or be killed himself; that he was frightened when Watkins threatened to cut his throat and went to striking in his face; that Watkins was striking and he (the defendant) was backing all the time until he (the defendant) “struck the far end of the porch;” that when he “throwed” his “gun” on Watkins it was knocked down by the left hand of Watkins, and Watkins continued striking as fast as he could; that he did not know what Watkins had against him when Watkins raised up and drew the knife, and did not know until then that Watkins was “mad” with him; that the last time he had seen Watkins was when'Watkins stayed all night at his house in the spring; that he had never had anything against Watkins, and did not remember telling anybody that he had; and that he was carrying the “gun” because of threats of a “slacker” that he had helped to catch.

*Herbert Clay, B. L. Smith,*for plaintiff in error,

*John T. Dorsey, solicitor-general, William Butt,*contra.