While concurring in the conclusion of the court that no error appears in the ruling of the trial court, or in the charge to the jury, or in the refusal to give certain charges requested by the defendant, and that the judgment should be affirmed, I cannot concur in the statement that there was ample substantial evidence disclosed by the record to have sustained a verdict for a higher degree of unlawful homicide than that of manslaughter. While the evidence was in conflict and the question was one for the jury to decide, I do not think the evidence would have sustained a conviction for any higher degree of homicide. In fact, the case made out by the State was to my mind far short of being a strong case. There were three eye witnesses to the difficulty; McCroan, the State's witness, Ray Ham, the defendant's witness, and the defendant himself. According to the defendant and his witness, Ham, the deceased, who was much the larger and younger man of the two, had the defendant down on the *Page 644 ground beating him severely, when the defendant cut the deceased with a knife. This knife wound proved fatal. McCroan testified that the defendant first cut the deceased with a knife and then the deceased knocked the defendant down or flung him down, and that it was then that he got on top of him and beat him with his fist. While Me Croan's story of the difficulty, as I read it in the record, does not appear to be as reasonable and consistent as the testimony of the defendant and his witness Ham, the fact remains that the jury had all of these witnesses before them and had an opportunity to judge of their credibility and we cannot say that the trial judge, who also had an opportunity to see and hear the witnesses, was guilty of error in overruling the motion for a new trial. I therefore concur in the affirmance of the judgment below.