
    Townsend v. The State.
   Gilbert, J.

The accused was tried for the offense of murder, and found guilty, with recommendation to mercy, for the homicide of Dr. J. R. Arrington. Her motion for a new trial being overruled, she excepted. One ground of the motion for a new trial complained that the court failed and omitted to give in charge to the jury the law of voluntary manslaughter as embodied in sections 64 and 65 of the Penal Code, and also as based on the theory of mutual combat, insisting that under the evidence such a charge was required. There was evidence as follows: “ Dr. Arrington [the deceased] come on in the house . . through the .front door . . He come on in the kitchen . . When I saw he was going to come in I turned to Mama [the defendant] and told her he was coming. As I went, to the door in the partition between the back room and sitting room I saw my mother coming out of the kitchen . . in a fast walk. Dr. Arrington was after her and trying to catch her, and she was trying to keep out of the way. He was drunk and staggering, he was cursing Mama. On the front porch Mama was dodging him, trying to keep way from him and he was after her. He got hold of her and she wrung loose, and she fell out of the porch and got back on the porch. He got hold of her again, and she shoved him out and he struck the car, and he said, Dennis, hand me my gun, I will kill the damn bitch before she gets in the house.’ ” Witness at this time ran into the house and brought a gun to her mother, and started back to the door in partition, and the defendant fired, killing Dr. Arrington. Held:

No. 3131.

November 18, 1922.

Indictment for murder. Before Judge J. B. Jones. Hall superior court. February 18, 1922.

W. P. Whelchel and B. P. Gaillard Jr., for plaintiff in error.

George M. Napier, attorney-general, J. G. Oollins, solicitor- and Seward M. Smith, asst, atty.-gen., contra.

1. The foregoing evidence raised the issue of -voluntafy manslaughter, and a charge on that subject, as embraced in sections 64 and 65 of the Penal Code was required.

2. The evidence did not require a charge on the- subject of voluntary manslaughter as based upon the theory of mutual combat.

3. It was not error to reject evidence offered by the defendant for the purpose of showing that “ At that particular time his general reputation known in the community was that he was drinking too much whisky, and was accused of handling it.”

Judgment reversed.

All the Justices concur.  