
    2468.
    Clark v. The State.
    Indictment for assault with intent to murder; from Sumter superior court — Judge Littlejohn. January 25, 1910.
   Hill, C. J.

1. Under the facts of this case, the law of voluntary manslaughter was not applicable. Gardner v. State, 90 Ga. 310 (17 S. E. 86, 35 Am. St. R. 202).

2. Where the defendant relied upon the fact of mistaken identity, that he was not the perpetrator of the crime, and was not present when it was committed, although near by, it was not erroneous for the court, to charge the jury upon the theory of alibi, though it was not expressly set up as a defense and was only incidentally a part of the ease. Especially was the charge of alibi harmless when the real defense of mistaken identity was fully and clearly presented to the jury by the court in the instructions. Harrison v. State, 83 Ga. 130 (9 S. E. 542).

3. Where the undisputed evidence showed that the felonious assault was made with a pistol, loaded with powder and ball, which was shot at the prosecutor, and that the ball entered a box near him, it was not error for the court, in stating the circumstances illustrating intent to kill, to use the language: “Was it a deadly weapon — a weapon with which death could be produced? And if they find that such a weapon was used, was it used in a -manner calculated to produce death f”

4. Where the perpetration of the crime was admitted, and the only defense made was that the defendant was not the offender, and where the defendant was positively identified by four witnesses as the guilty party, the verdict so finding was not without evidence to suppoi't it, although many other witnesses swore that they saw the person who committed the crime, that they knew the defendant well, and- that it was not he, but another person, whom they described but did not name. The question of identity was for decision by the jury.

5. The alleged newly discovered testimony was both cumulative and impeaching, and would not probably produce a different verdict, and was therefore an insufficient ground for another trial. Penal Code, § 1061; Parker v. State, 3 Ga. App. 337 (59 S. E. 823) ; Bunn v. Hargraves, 3 Ga. App. 518 (60 S. E. 223). Judgment affirmed.

Argued March. 22,

Decided April 6, 1910.

J. A. Nixon, L. J. Blalock, for plaintiff in error.

J. B. Williams, solicitor-general, contra.  