This appeal is prosecuted from a conviction of manslaughter, in which the penalty was assessed at confinement in the penitentiary for a term of two years. The evidence, in substance, discloses, that deceased, accompanied by two of his children, both young boys, was returning from a neighboring town. The deceased was drunk, and asleep in his wagon. On reaching the home of defendant the wagon halted in the public road, which ran between his residence on one side and his horse lot on the other.
About this time defendant returned from a fishing excursion, left his gun, which he carried with him, at or near the well in the yard, gathered some weeds for his hogs, and started with same in the direction of the lot where his hogs were. Upon approaching the wagon, defendant was requested by two parties who were passing to assist the little boys in getting their father home. He went on into the lot, and soon returned to the wagon, and remarked to the boys that they had better get their father away "damn quick, or there was going to be a racket." At this juncture deceased waked up, looked at defendant, and asked who he was. Being informed it was defendant, he said, "Give me my pistol; I will kill him." He then got out of the wagon, and followed defendant, who had started off in the direction of the horse lot. Deceased staggered along after defendant, who had gotten over into the lot and disappeared in a branch. Defendant almost immediately reappeared in the road, and in view of deceased, who again followed him. Defendant got over the fence into the yard, saying to deceased and his sons, "If you don't get him off from here, damn him, I will kill him." He went to the well and picked up his gun. The well was thirty feet from the yard gate. Deceased entered the yard, at the gate, and had proceeded about fifteen feet inside the yard, and within about the same distance of defendant, when he shot him.
Defendant testified that, he "spoke to him (deceased), and told him to stop, but he kept coming. When he had gotten about fifteen feet into *Page 70 the yard, I called to him again to stop, and said to him, 'If you come any further, God damn you, I will kill you.' He still kept coming, and I raised my gun and fired at his breast. The gun was loaded with small bird shot, I think No. 6's." He further testified: "When Garrett (the deceased), came into the yard, if there was anything in his hands, I did not see it. I could see Garrett all the time, after he first started after me. I could see him all the time. If he had anything in his hands I did not see it." Upon being shot, deceased turned, walked back to the road, fell, and died.
In this connection, it is insisted by defendant, that the conviction is not supported by the evidence, and that the court erred in refusing to give instructions requested by him, submitting the issue of aggravated assault and battery. The instruction was asked upon the theory that defendant's purpose in shooting deceased was to check his advance upon him, and not with the intent of killing him. In this view we can not concur. The defendant's testimony excludes this idea, and clearly shows that his intent was to kill, provided deceased did not stop his advances upon him. Besides, he testified that he shot the deceased in the breast, and the facts show, at the distance of only fifteen feet. We are of opinion that the court did not err in refusing to charge upon aggravated assault and battery; and further, that the evidence supports the conviction.
To his motion for a new trial defendant attaches the affidavits of Kennedy and Blocker, setting up newly discovered testimony. The substance of this testimony is, that in about an hour or an hour and a half subsequent to the homicide, they heard Arthur Garrett, one of the sons of deceased, who witnessed the difficulty, say that deceased, when he went into the yard of defendant, had a knife in his hands, and upon being shot put it back into his pocket. If this be true, it is hearsay, and inadmissible as evidence.
The court charged the law of self-defense as favorably as the facts warranted, if, in fact, such a charge was called for by the evidence. Finding no error in the record, the judgment is affirmed.
Affirmed.
Judges all present and concurring. *Page 71