Tolbirt v. State

May 10, 1904
Reporters:
, ,
Before:
Simmons
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.