
    40332.
    HARRELL v. THE STATE.
   Jordan, Judge.

Abner Harrell and his son, Walter Franklin Harrell, were jointly indicted for the offense of murder. The defendant Abner Harrell was tried separately and was found guilty of voluntary manslaughter. His amended motion for new trial was denied, and the exception is to that judgment.

Held:

This is a companion case to that of Harrell v. State, ante, in which this court held that the conviction of the defendant’s son, Walter Franklin Harrell, of the offense of voluntary manslaughter, was unauthorized by the evidence and reversed the denial of his motion for new trial on the general grounds. In so ruling the court stated as follows in the opinion in Division 3: “The uncontradicted evidence shows that the defendant [Walter Franklin Harrell] shot the deceased when the deceased grabbed a riñe and was in the process of attempting to cock it and shoot the defendant. The deceased had already made an unprovoked attack on the defendant’s father, and the defendant, in his extra-judicial statements and in his sworn testimony on the trial, stated facts in support of his conclusion that he feared for his life and that of his father.”

The evidence in this case, including the sworn testimony of the defendant’s son that he shot the deceased in self-defense, is substantially the same as in that case; and is insufficient to authorize the defendant’s conviction of the offense of voluntary manslaughter. Accordingly, the trial court erred in denying his motion for new trial on the general grounds, and the special grounds need not be considered.

Judgment reversed.

Nichols, P. J., and Frankum, J., concur.

Decided September 12, 1963.

Kopp & Peavy, J. Edwin Peavy, for plaintiff in error.

Dewey Hayes, Solicitor General, M. C. Pritchard, contra.  