Simmons, C. J.In view of the issues involved, there was no-error in charging the law of voluntary manslaughter, nor in failing to charge as specified; the evidence warranted the verdict, and there was no error in denying a new trial.
Judgment affirmed.
Indictment for assault to murder. Before Judge Hart. Morgan superior court. September term, 1895.Taylor and Matliews were indicted for assault with intent to murder Bowman. Taylor was tried and found guilty of ■unlawful shooting, and his motion for a new trial was overruled. The grounds of the motion are, that the verdict is contrary to law and evidence; that the court erred in giving in charge the law of voluntary manslaughter, the same not being applicable to the facts of the case; and that the court, after charging the law of justifiable homicide as contained in the code, erred in not charging as follows, though not so requested in writing: “If you believe from the evidence that Jim Mathews was a brother of defendant, and that the prosecutor John Bowman was assaulting the said Jim Mathews with a gun or other weapon likely to produce death, and in a manner apparently dangerous to the life of the said James Mathews, then the said Walter Taylor had the right to protect his said brother; and if in •order to protect him it was necessary to take the life of the said John Bowman, or in otherwise resisting the assault of Bowman upon the said Mathews, so far as was necessary to protect said Mathews; and a seeming necessity, if acted on in good faith by the said defendant Walter Taylor, would be equivalent to a real necessity. If the said Taylor had reasonable fears that the said John Bowman was about to commit an assault or bodily injury upon the said Mathews with a weapon likely to produce death, and in a manner apparently dangerous to the life of said Mathews, and if Taylor acted in good faith upon said fears, then he would be justifiable and you would acquit him.”From the testimony of Bowman it appears, that he was shot in the left leg by a pistol fired by Taylor, who is a half-brother to Mathews. Bowman was standing at Johnson’s shop, and saw them together coming from Crawford’s barber-shop, about 100 yards off, and on the other side of the street. When they were opposite to him he crossed, over to them and said, “I suppose you all were looking for me to kill me last night.” ' He heard they had been looking for him. He had come to town to get a warrant against them. He had a double-barrelled shot-gun on his shoulder. They said nothing to him. He then went on toward Butler’s to have them arrested, and as he got past Roger’s bar-room somebody said, “Look out; he is going to shoot.” He stopped and saw that Mathews had his ■ pistol nearly out. He lowered the gun, cocked one barrel, and said, “Don’t pull that pistol at me,” and burst a cap at Mathews while he was shooting. Mathews shot before he burst the cap. Taylor 'fired the shot that hit him. He was facing Mathews, and Taylor was to his side. He saw Taylor before he was shot, but had no words with him; did not think he was in it. Mathews and Taylor each fired two shots, and then ran. In the city court witness said he did not see Taylor shoot. Mathews was standing behind a post. Taylor was standing in front of Roger’s door when he fired. Bowman did not fire at all. On cross-examination he testified, among other things, that he popped the cap on his gun at the same time as the firing; his gun dropped from his hand, and he ran his hand into his pocket to get his pistol out. He did not know who cried, “Look out.” He did not himself say, “Look out; I am going to shoot.”Roger testified, that Mathews and Taylor were in his bar-room before the shooting, with their hands in their pockets. He heard them talking about there was going to be a shooting scrape, and he made them go out. Doster testified, that he was standing in the door of Roger’s saloon when the shooting started. The first he knew of it, he saw Roger make Mathews go out of the saloon. Mathews had his hand in his pocket. Bowman was outside across the street, forty or fifty feet. Mathews leaned against the awning-post. Doster did not see Taylor at that time. Bowman walked up the street and behind the sign that hangs down there. Then Mathews drew his pistol, and some one ran against Doster and shoved him into the house, lie did not see the shooting. He could only see Bowman’s feet behind the sign; he was going towards Butler’s corner. When Doster came back to the door after the shooting was oyer, Taylor was standing behind a post, stooped with pistol in his hand. Bowman was standing with his side to Taylor and facing Mathews. The lower edge of the awning was three or four feet from the ground. Doster did not see the whole of Bowman behind the awning. When he was going behind the awning he had his gun in his hand. Doster heard the gun snap; he was in the house; the shooting and snapping were pretty close together; he thought the cap burst before the shooting; it was pretty quick. He did not hear anything said before the shooting. Bowman was walking up the street when Mathews drew his pistol.Gordon testified: Bowman came walking up the street in the middle of the road, and as he would go up the road Mathews would watch him. Bowman said, “Look out,” and burst the cap, and Mathews made the first fire, and Taylor shot and then Mathews shot again, and Taylor fired the second time. Bowman had his gun under his arm. Mathews was watching him. Bowman stopped and said, “Look out,” and snapped a cap before any shooting by Mathews and Taylor. It was Bowman who said, “Look out; I am going to shoot.” No one else said anything. When he said this, he levelled his gun at Mathews and burst the cap, and then Mathews fired. I saw Bowman go from Johnson’s shop and meet Mathews and Taylor who were coming from Crawford’s barber-shop. I do not know what he said to them. Bowman stopped in front of Johnson’s shop, and Mathews and Taylor came on to Koger’s bar. After a while Bowman came up the road and passed Mathews, who was standing with his hand in his pocket. Bowman said, “Don’t you pull out that pistol; if you do I will shoot you,” and burst a cap at them; and Mathews shot, and Taylor (who was standing by a telegraph-post) made the last shot. Then he and Mathews ran.George & George, by Harrison & Peeples, for plaintiff in error. H. G. Leíais, solicitor-general, contra.