The appellant was tried on an indictment for murder, and convicted of manslaughter in accord with a manslaughter instruction granted the jury at the request of the state. Counsel for the appellant admit that the evidence would have justified a conviction of murder but say that no element of manslaughter appears therein, and, consequently, the instruction on manslaughter should not have been given, and for that reason the judgment of the court below should be reversed.
Reliance is placed by counsel for the appellant on the case of Rester v. State, 110 Miss. 689, 70 So. 881, which, if it were still in effect, would justify counsels' position,
but they overlook the fact that that case was overruled in Calicoat v. State, 131 Miss. 169, 95 So. 318; that it was there held that the defendant in such a case has no cause of complaint at the granting to the state of a manslaughter instruction, and that that case has been many times followed and approved, among the cases so doing are: Stevenson v. State, 136 Miss. 22, 100 So. 525; White v. State, 142 Miss. 484; 107 So. 755; Goss v. State,144 Miss. 420, 110 So. 208; Alexander v. State, 145 Miss. 675,110 So. 367. Barnett v. State, 146 Miss. 893, 112 So. 586; Everett v. State, 147 Miss. 570, 113 So. 186; Blalock v. State,148 Miss. 1, 113 So. 627; Taylor v. State, 148 Miss. 713,114 So. 823; Carter v. State, 152 Miss. 43, 118 So. 369; Blevins v. State, 169 Miss. 868, 154 So. 269; Bradford v. State (Miss.), 161 So. 138; Moore v. State (Miss.), 194 So. 921; Hand v. State,190 Miss. 314, 200 So. 258; Graham v. State, 195 Miss. 291,15 So.2d 478.
Affirmed.