By the Court.
Nisbet, J.,delivering the opinion.
pL] It is very clear that a new trial cannot be awarded in this case, upon the newly discovered facts, as testified to in the affidavit of W. A. Lowry. The purchase of the pistol and buck-shot, and the declarations of the deceased, made at that time, that he had bought the pistol to kill Carr, the prisoner, were some weeks anterior to the killing. They are not admissible in evidence, because it cannot be presumed that Can-acted under their influence in slaying Youngblood, without knowledge of them; and there is no evidence whatever, of no*361tice to him, of the purchase of the pistol and shot, and of the threats. This vieiy is quite sufficient for this branch of the case.
The testimony of Levi Jenkins, not being newly discovered testimony, is not relied upon by counsel for plaintiff in error; and is inserted in the record for the purpose of showing more fully the bearing on the case, of the new facts sworn to by James R. Gunn. We are willing to read those facts in the light of Jenkins’ affidavit; and still are constrained to deny a new trial. Gunn swears, that on the day, and about the time of the day that Youngblood was killed, he was about one-fourth of a mile from the place of the shooting; and that he heard the report of two pistols or guns, fired off in quick succession— “ about at the same time.” The material new fact here, is the report of two guns about the same time; and it is claimed to be material, to show to the jury that the deceased, when the parties met in the field, fired, and may have fired first; and thus lay the foundation for defence; This fact, counsel insists, becomes very important, when taken with the threat which Jenkins proves, and of which he informed Carr, made by Youngblood, that he would kill Carr.
[2.] Let it be conceded, that Carr knew of that threat — and let it be conceded that Youngblood fired at the rencontre; and still, we think that the law adjudges it a case of manslaughter. The getting over the fence, and the advance to meet deceased, who was also advancing, must, even with the new evidence, characterize this as a case of manslaughter.— Eor the facts of the case, which I do not think it necessary here to detail, see the same case, upon a former writ of error, 12 Ga. R. 328. If the case is, in law, what the Jury found it, manslaughter, with the newly discovered evidence considered, then we will not award a new trial; for the law of the case must rule it.
Let the judgment be affirmed.