Appellant was convicted of manslaughter, his punishment being assessed at two years confinement in the penitentiary.
1. Two questions are suggested for revision: First, the refusal of the continuance on account of the absence of the witness Summage. If it was deemed necessary to discuss this question, we are of opinion that the appellant was entitled to have the absent evidence before the jury, but the view we take of the case it is not necessary to go into a discussion of that question.
2. The second question presented is the want of sufficient evidence to justify the conviction. As we understand the evidence, it is shown that on the night of the homicide a lot of negroes had congregated near a store. A number of them were engaged in a game of "monte." Tobe Wilson was the dealer. There arose some trouble between Kit Tate and one of the other negroes, during which Tate exhibited a pistol. Mr. Latimer came upon the scene and interfered with a view of suppressing the trouble and making the negroes behave themselves. He took from Tate a pistol. Immediately upon his securing the pistol, the deceased, Evans, grabbed it out of his hand. Latimer demanded it. Evans told him that he would give up his pistol if Henry (appellant) would give up his. This is one phase of the testimony. Another goes to show that he stated he would not give it up, that he would die and go to hell first. Mr. Latimer ordered appellant to go home; that he immediately started in that direction and went into the store. Latimer took the deceased by the arm and carried him to the door of the store and pushed him in. He was not aware at the time that he put deceased in the store that appellant was also in there. Appellant and deceased both ordered beer. There was some question as to which one ordered it first, but after deceased ordered his beer he turned to appellant and said, "You pulled a gun on that boy out there and you know that if you do that you had just as well pull it on me." Appellant remarked, "You are a liar," or, "damn liar." Deceased then remarked to appellant, "You got your gun and I have got mine, so let's go." Deceased then reached his hand for his pistol and exhibited it as if to shoot and appellant fired twice. This is practically the substance of the immediate facts surrounding the homicide. Under this condition of the record we are of opinion that the conviction was wrong and not supported by the evidence.
The judgment is reversed and the cause is remanded.
Reversed and remanded. *Page 203