
    7358.
    Clayton v. The State.
   Hodges, J.

1. It being in dispute whether the accused used a weapon, it was error, requiring a new trial, for the court to charge the jury as follows: “If the jury find that the instrument the accused used was a weapon likely to produce death, in the manner in which you find it was used, then, if the accused was not justified under some rule of law, about which I have instructed you, in using the weapon, in the manner and at the time he used it, the accused would be guilty of murder, or of voluntary manslaughter, according to whether the jury find that the blow was struck from malice, express or implied, or as a result of passion and not brought about by words alone.” This instruction was subject to the exception that it contained an expression of opinion that the accused did use a weapon.

Decided June 28, 1916.

Indictment for murder — conviction of manslaughter; from Mitchell superior court — Judge Cox. February 9, 1916.

Peacock & Gardner, Johnson & Warren, for plaintiff in error.

B. Q. Bell, solicitor-general, F. A. Hooper, Haggard & Collins, contra.

2. The assignments of error other than that dealt with above need not be passed upon, as the alleged errors assigned therein probably will not arise on the next trial of the case. Judgment reversed.  