
    27675.
    BURFORD v. THE STATE.
    Decided September 9, 1939.
    
      J. T. Moore, B. B. Garland, W. E. Watkins, for plaintiff in error.
    
      Frank B. Willingham, solicitor-general, contra.
   Guerry, J.

The defendant was indicted for murder, and was found guilty of voluntary manslaughter. The evidence showed a mutual combat, and that the deceased had an ice-pick in his left hand and slapped or knocked the defendant down. She arose with a butcher-knife in her hand and cut or stabbed the deceased in the heart. The assignments of error with reference to the charge to the jury are without merit. In one of the grounds it is alleged that the sheriff made certain improper remarks in the presence and hearing of the jury. The sheriff on oath denied this. The judge, as a trior of this question, having found against the defendant’s contention, this court will not interfere. Moreover, it appears from the affidavit that the defendant’s counsel knew of this alleged improper conduct before the return of the verdict, and failed to bring it to the attention of the court. The court did not err in overruling the motion for new trial.

Judgment affirmed.

Broyles, G. J., and MacIntyre, J., concur.  