The motion for a new trial contains the grounds that the verdict was contrary to law and evidence, and assigns error upon the portions of the court’s charge which are quoted in the head-notes, alleging that these instructions should have been qualified by adding, that although the defendant provoked and brought on the difficulty, still if before the mortal blow was given he really and in good faith, retreated and declined further struggle, and was pursued or attacked by the deceased in a threatening manner with a deadly weapon, he would be justifiable or only guilty of voluntary manslaughter according to the circumstances of the case. Also, that the court should have referred the jury to the prisoner’s statement in immediate connection with the instructions set forth in the second head-note.There was evidence that, two or three hours after Morgan died, the coroner showed the defendant a pistol and asked him if that was his pistol, to which the defendant replied that it was. The coroner said, “Don’t claim it unless it is yours,” and defendant replied, “ It is my pistol.” The coroner further asked, “ Is this the pistol you killed that negro with ?” Defendant replied, “ That is the one I shot him with.” These statements were freely and voluntarily made. The court charged the jury “that all admissions should be scanned with care, and confession of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not j ustify a conviction.” Error is assigned because the court did not in that connection admonish the jury that it was for them to say whether or not any admission or confession of guilt had been made by the prisoner.Error is further assigned on the failure of the court to charge the law of voluntary manslaughter, thereby excluding from the consideration of the jury all the evidence that might have shown or tended to show that defendant was guilty of tbat offence and not guilty of murder. As to this ground the court certifies that counsel for defendant stated in argument to the jury that this case presented the clear cut issue of murder or justifiable homicide, that it was either the one or the other, and that voluntary manslaughter was not in the case. After hearing the testimony and the prisoner's statement, the court was of the same opinion, and stated to the jury in the-first part of the charge that it was admitted by the counsel for the prisoner that the killing was either murder or justifiable homicide ; so the court would not charge them upon the law of the other grades of homicide, that is manslaughter voluntary or involuntary. Prisoner’s counsel were present, heard this charge and made no objection; nor was there any request to charge, either oral or written, made by prisoner’s counsel.Busbee & Crum, for plaintiff in error.W. A. Little, attorney-general, and C. B. Hudson, solicitor-general, contra.
