
    Herrington v. The State.
   Cobb, P. J.

1. The evidence for the State demanded a verdict for murder. The accused introduced no evidence, but his statement, if credible, authorized an acquittal. There was no view of the evidence or the statement of the accused, under which a verdict for voluntary manslaughter could be legally rendered, and it was error to give in charge the law relating to this grade of homicide. The accused having been convicted of voluntary manslaughter, a new trial must be granted. Dyal v. State, 97 Ga. 428; Morgan v. State, 108 Ga. 748; James v. State, 123 Ga. 548; Robinson v. State, 109 Ga. 506.

Argued May 23,

Decided July 2, 1906.

Indictment for murder. Before Judge Holden. Burke superior court. March 31, 1906.

According to the testimony, the accused with his young son drove his wagon to the front of a storehouse in a village, and there stopped. He was approached by T. J. Smith, who began a conversation in which Herrington, the accused, “got to talking pretty loud,” and J. B. Smith, a brother of T. J. Smith, came from another storehouse and stood on the other side of the road, opposite the other two men. Herrington said, “You boj^s just come here this morning for a row.” T. J. Smith said, “I didn’t come here for no row, and I haven’t got a thing in the world but my hands to hurt you with.”' Herrington said, “If you did not come here for a row, then go away and leave me alone.” He alighted from the wagon and started into the storehouse, and T. J. Smith said, “Hncle Sam [an old negro man] says that you cursed him for a son of a bitch twice and cocked a gun on him, and Phillip says that you wanted to shoot with him; and I don’t intend for no god dam son of a bitch to run over him.” Herrington went into the storehouse and came out with a pistol in his hand. T. J. Smith held up one hand and said, “Mr. Herrington, I told you I had nothing,” and turned. Herrington said, “Damn you, I will put it to you anyhow,” and shot T. J. Smith three times with the pistol, one of the shots taking effect in his side, one in his back, and one in his hand. The accused introduced no evidence, but made a long statement in which he gave an account of prior controversies and troubles that had arisen between the Smiths 'and himself, and showed, in substance, as follows; He was about to drive away in his wagon, when T. J. Smith came and asked him to go aside into the woods to talk. He refused to go, whereupon Smith cursed him and accused him of lying and stealing. He saw J. B. Smith coming, and knew the two Smiths were coining upon him for a difficulty, — -they had threatened him so much. He ran into the storehouse, where he stayed about five minutes. J. B. Smith, after cursing Herrington’s son and asking if he wanted to take it up, looked into the storehouse, pointed his finger at Herrington, and said, “God damn you, we have got you to-day.” Herrington, thinking' they had him hemmed in, and not knowing what to do, took his pistol in his hand and walked out of the storehouse to his wagon. The Smiths approached him from different directions, and he saw that they were going to attack him at the same time. T. J. Smith got in about three steps of him, and said, “You god dam son of a bitch, you can run over my brothers but you can’t run over me.” Herrington said, “You go away from me,” and by that time Smith was right on him. He took no aim with the pistol, but pulled the trigger as fast as he could, etc.

2. The provisions of Penal Code, §75, have no application to a ease of the character indicated in the preceding note.

3. The remaining assignments of error in the special grounds of the motion for a new trial relate to matters which will not occur at another trial.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.

Phil. P. J ohnston and Brinson & Davis, for plaintiff in error.

J. S. Reynolds, solicitor-general, and Lawson & Beales, contra.  