1. Where one shoots at another,' intending to kill him, under such circumstances that the killing, if accomplished, -would be voluntary manslaughter, but the shot misses him and accidentally kills an innocent third person, the homicide -will be voluntary manslaughter. 1 Bishop’s New Criminal Law, § 328; 2 Bishop’s New Criminal Law, § 719.
2. The only ground in the motion for a new trial which contains a special assignment of error of law is not verified by the trial judge, and therefore presents no question for this court.
3. The alleged newly discovered testimony is merely cumulative and impeaching in character, and could have been produced at the trial by the exercise of due diligence. 4. There is evidence to support the verdict. Judgment affirmed.