
    WHITE v. THE STATE.
    1. Although the parties had engaged in a struggle, and there was evidence from which it might have been inferred that the deceased, who was unarmed, was the assailant, yet where it appeared that he retired, declining further contest, and that the defendant, with an open knife in his hand, pursued the deceased, and inflicted five wounds, one of which proved fatal, the evidence was sufficient to warrant a verdict of guilty of murder.
    2. It was for the jury to determine whether the interval between the assault and the homicide was sufficient for the voice of reason and humanity to be heard.
    Argued October 21, —
    Decided October 29, 1903.
    Indictment for murder. Before Judge Fite. Catoosa superior court. September 21, 1903.
    
      B. E. Tatum, for plaintiff in error.
    
      John C. Hart, attorney-general, and Sam. F. Maddox, solicitor-general, contra.
   Lamar, J.

The defendant, White, and the deceased, Shipp, were drinking. For some reason unknown to the bystanders, they got into an altercation and used insulting words one towards the other. White called Shipp a liar, who in turn called White a s— of a b — . They grappled. There is a doubt as to which kicked or hit the other in the stomach; but Shipp broke loose, ran, and was pursued by defendant with an open knife in his hand. The bystanders did not seem to think that there was anything serious, and did not follow. In about ten minutes White returned, holding the open knife and stating with an oath that he had killed Shipp, who was found a short distance off in the woods, with five wounds— three on the shoulder and one in his stomach (which the doctor testified were not sufficient to produce death), and the fifth, a stab in the heart, which had proved fatal. The defendant later insisted that Shipp had mashed him against a tree and was choking him, and that he had cut to save his own life. The flight, pursuit, number of wounds, and the attendant circumstances were amply sufficient to justify the jury in finding the defendant guilty of murder. Under the act of 1899 (Acts 1899 p. 41), it was for them to say whether the interval between the assault and the homicide was sufficient cooling time to permit the voice of reason and humanity to be heard. Penal Code, § 65.

cJudgment affirmed.

All the Justices concur.  