
    Northroot v. The State.
    November 13, 1914.
    Indictment for murder. Before Judge Worrill. Early superior court. July 3, 1914.
    
      A. H. Gray, for plaintiff in error.
    
      Warren Grice, attorney-general, B. T. Castellow, solicitor-general, and B. B. Arnold, contra.
   Atkinson, J.

Prank Northfoot was indicted for the murder of his wife, Hattie Northfoot. Evidence was introduced tending to show a homicide without mitigation. The defendant did not introduce evidence, hut made a statement as he was authorized to do under the statute. According to this, the wife had been keeping company with a certain woman, and the two receiving attention from other men. When the defendant remonstrated she left him and went to her mother in the country. After an absence of about three months she returned to her grandmother in town, and sent for accused to come to see her. He went several times and endeavored to get her to return. She declined, but finally said she would “study about it.” After this the accused, looking through the window, saw two men in the room with her, who left when he knocked at the door. The next visit was on the night of the homicide. On that occasion the accused was received in a room by his wife and another woman [Maude Grimes], What followed was related thus: “I told my wife I had something to tell her, and we walked out in the hall, and I leaned up against the bookcase, and she caught hold of my coat and commenced shaking me, and she asked me why I didn’t come. Tuesday night like she ' had asked me, and I told her my business was so I could not come; and she was holding to my coat and told me to come back in the room, and commenced pulling me; and I told her to turn me aloose, that I warnt going back in there; and about that time Maude Grimes spoke and said, ‘Why don’t you turn Prank aloose?’ And when Maude Grimes spoke that, Hattie she had on an opera cape, and she run her hand under her cape and pulled out a knife, and drawed it on me in this position, and after the gun fired I turned and walked out of the house.” Held: Prom this statement the jury would have been authorized to find that the deceased made an assault on the accused amounting to less than a felony, and that the latter took the life of the former in a sudden heat of passion provoked by the assault, rather than in malice, and, upon such finding, to grade the offense as voluntary manslaughter. It was, therefore, erroneous for the judge to refuse an appropriate and timely request to charge the law upon that subject.

Judgment reversed.

All the Justices concur, except Fish, G. J., absent, and Evans, P. J., and Hill, J., dissenting.  