
    4499.
    Simpson v. The State.
   Russell, J.

1. The evidence authorized the court to instruct the jury upon the subject of voluntary manslaughter.

2. The trial judge fully and correctly presented to the jury the rules of law applicable to a case of homicide, whei'e it is sought to justify the act by the reasonable fears of the slayer; and an instruction, in this connection, that, “the law does not justify a killing by one who believes he has grounds to fear that he will be injured, without any regard to the extent of the injury,” was not error.

3. The accused was not convicted of murder, but was convicted of manslaughter. For this reason the instruction on the subject of malice could not have been prejudicial to the accused in any of the respects or for any of the reasons pointed out in the assignments of error. One tried for murder but convicted only of manslaughter can not successfully assign error upon instructions of the trial judge as to malice, without showing that the instructions alleged to be erroneous in some way influenced and conduced to the verdict actually rendered.

4. If a jury, upon the trial of a criminal case, are satisfied from the evidence, beyond a reasonable doubt, that the accused is guilty of one of two or more offenses of which the defendant may lawfully be convicted under the indictment against him, but have reasonable doubt as to which of these offenses the defendant is guilty of, it is their duty to give him the benefit of the doubt and find him guilty only of the lower grade of offense; and the trial judge did not err in instructing the jury to this effect.

Decided February 11, 1913.

Indictment for murder—conviction of voluntary manslaughter; from Pulaski superior court—Judge Martin. October 30, 1912.

M. E. Boyer, E. E. Coates, John B. Cooper, for plaintiff in error.

E. D. Graham, solicitor-general, contra.

5. Complaints presented only in the brief, and not embodied in the assignments of error in the motion for new trial, nor in the bill of exceptions, though urged in argument, can not be considered.

6. The evidence authorized the verdict, and there was no error in refusing a new trial. Judgment affirmed.  