July 7, 1917. The opinion of the Court was delivered by This is an indictment for murder. The appellant was a convict on the chain gang. The deceased was a guard on the chain gang. The deceased had been warned against the appellant, because the appellant was serving a life sentence. The guard threatened to shoot the appellant and punish him severely if he made any signs of resistance.
There is testimony that the appellant expected punishment on the night of the homicide. The appellant was working on the road under the direction of the deceased. There were several tools lying near by, some of which were unquestionably deadly weapons. The appellant took up a shovel and hit the deceased with the broadside of the shovel. The blow struck the guard at a vital spot and killed him.
The presiding Judge submitted the question of self-defense to the jury, but refused to submit the question of manslaughter. This refusal is made a ground of appeal and is the question in this case.
There is evidence from which the jury might have found a verdict of manslaughter. It is not proper for this Court to discuss the evidence. It is sufficient to say that there is evidence from which the jury could have found a verdict of *Page 431 manslaughter, and the law governing that subject should have been charged.
The judgment is reversed, and a new trial is ordered.
MR. CHIEF JUSTICE GARY did not participate in the consideration of this case.