
    25590.
    Cleary v. The State.
   Broyles, C. J.

I. The accused was indicted for the murder of his own daughter, and found guilty of voluntary manslaughter. The special grounds of the motion for new trial complain of several excerpts from j;hp charge of the court. These excerpts,, whep considered in eonnectiop with the entire charge and the facts of the case, show no cause for a reversal of the judgment.

Decided May 19, 1936.

H. A. Boyltin, fox plaintiff in exxox.

W. G. Neville, solicitor-general, contra.

2. On the trial of one indicted for murder, the jury has the right to find him guilty of voluntary manslaughter, where, from the evidence or the defendant’s statement to the jury, it appears to the jury, beyond a reasonable doubt, that the defendant unlawfully and intentionally killed the deceased, but did so without any malice or deliberation, and upon a sudden heat of passion caused by the actual assault upon him by the deceased, or an attempt, by the person killed, to commit a serious personal injury on the person killing, or by other equivalent circumstances which justified the heat of passion, and excluded all idea of deliberation or malice, either express or implied. Code of 1933, § 26-1007. Applying this ruling to the facts of the instant case, the verdict of voluntary manslaughter was not contrary to law or the evidence, and the refusal to grant a new trial was not error for any reason assigned. Judgment affirmed.

MacIntyre and Guerry, JJ., concur.  