
    Tolbirt v. The State.
    Argued January 20,
    Decided May 10, 1904.
    Indictment for murder. Before Judge Bartlett. Haralson superior court. December 4, 1903.
    7. M. & H. J. McBride, S. L. Graven, and W. B. Hutcheson, for plaintiff in error. W. K. Fielder, solicitor-general, contra.
   Simmons, C. J.

1. The theory of the State was that the accused was guilty of murder ; his defense was that the homicide was justifiable. After a close study of the evidence we find nothing tending to show or from which the jury could legitimately infer that the homicide was voluntary manslaughter. The record shows that the accused either was guilty of murder or else was justifiable. It was therefore error to give in charge the law relating to voluntary manslaughter, and a verdict finding the accused guilty of that offense was without evidence to support it, and a new trial should have been granted upon these grounds.

2. Other than as above noted, there was no material error in any of the rulings of which complaint was made.

Judgment reversed.

All the Justices concur, except Evans, J., who did not preside.  