
    33734.
    WHITAKER v. THE STATE.
    Decided October 25, 1951.
    
      
      Irwin L. Evans, T. A. Hutcheson, for plaintiff in error.
    
      W. H. Lanier, Solicitor-General, Casey Thigpen, J. D. Godfrey, contra.
   Gardner, J.

The jury would have been authorized, under the evidence in this case, to find the defendant guilty of murder, but that verdict was not demanded.

We come next to consider whether the evidence is sufficient to sustain the verdict which the jury returned of voluntary manslaughter. We think it is. While the evidence is conflicting in some respects, it is our opinion that, under the facts, the jury were authorized to return a verdict of voluntary manslaughter under the general principle that the defendant was actuated by a passion supposed to be irresistible, aroused on account of the difficulty between him and the deceased at the home of the deceased. We are also of the opinion that the evidence sustains a verdict of voluntary manslaughter on the principle involved in mutual combat. We see no benefit that would result in going into detail with reference to the application of the evidence to these two principles of law. They are too well established. We have no doubt at all that the evidence sustains the verdict of voluntary manslaughter, and perhaps the defendant was fortunate in being convicted of this lesser offense.

The only special ground is based on newly discovered evidence. Such motions are not favored. The evidence in this motion does not impress us that' another trial based thereon would produce a different result. It is in the main cumulative and impeaching.

The court did not abuse its discretion in overruling this special ground.

Judgment affirmed.

MacIntyre, P.J., and Townsend, J., concur.  