James v. State , 123 Ga. 548 ( 1905 )

Eish, P. J.

1. The evidence for the State, if credible, warranted a verdict for murder. The evidence for the accused and his statement, if believed, showed complete justification. There was nothing in the evidence or the statement of the accused, considered separately or together, tending to show, or from which the jury could legitimately infer,-that the homicide was voluntary manslaughter. It was therefore error to give in charge the law relating to voluntary manslaughter, and a verdict finding the accused guilty of that offense was without evidence to support it. McBeth v. State, 122 Ga. 737.

Argued July 10, Decided August 1, 1905.

Conviction of manslaughter. Before Judge Spence. Dougherty superior court. June 14, 1905.

J. W. Walters and I. J. Hofmayer, for plaintiff in error. W. JE. Wooten, solicitor-general, by B. B. Arnold, contra.

2. Neither was there anything in the evidence or the statement of the accused to support the theory of mutual combat. Accordingly it was error to give in charge section 73 of the Penal Code. See Jordan v. State, 117 Ga. 405, and cit.

3. The court did not err in admitting or excluding evidence.

Judgment reversed.

All the Justices concur,'except Simmons, G. J., absent.