1. The evidence sustained the verdict.
2. The court did not intimate or express an opinion that the defendant was guilty of voluntary manslaughter in the following charge to the jury: "Now included in the charge of murder as set out in the indictment a lesser offense is involved, and it is for you to determine whether or not the defendant is guilty of murder, or guilty of the lesser offense, or not guilty under the rules the court will give you in charge when this law is applied to the evidence and the defendant's statement."
DECIDED NOVEMBER 7, 1942. The defendant was convicted of voluntary manslaughter. He filed a motion for new trial which was overruled and he excepted. The accused lived with his mother. On the night of the homicide the deceased, in company with two others, went to the home of the accused. The evidence was sufficient to authorize an inference that the visit was made for the purpose of obtaining intoxicating liquors. They found no one at the home. They left. Several hours later the deceased, in company with a companion, returned to the home of the accused. Again they found no one there, whereupon they went to the back of the house and forced an entrance. After entering the house they turned on the lights. According to a neighbor they began a hilarious time. According to the accused they disrupted the furnishings to a considerable extent. Soon thereafter the accused, with a friend, reached home. The accused approached the front entrance of the house and with an oath demanded entrance. Either the deceased or his companion demanded that they come to the back if they wanted to get in. The accused and his friend entered. According to some of the testimony there was hilarious conduct in the house *Page 264 after the accused entered. According to other evidence an argument ensued between the deceased and the accused. The accused, after entering the house, upbraided the deceased, accusing him of making the entrance for the purpose of committing a larceny. The accused threatened to call an officer, but refrained on account of the fact that the companion of the deceased had been in so much trouble previously that he feared such action would cause such companion to serve a number of years in the penitentiary. The argument between the accused and the deceased continued. The accused obtained a piece of firewood. He struck the deceased on the head one lick, inflicting an injury which resulted in his death the following morning.
The deceased remained on the outside of the house but near the premises during the night, and was found next morning in an unconscious condition and carried to the hospital. X-rays were made by which it was discovered that an injury to his head had caused concussion. Neighbors heard the groans of the deceased during the night. When the presence of the deceased was discovered the next morning and neighbors were inquiring of the accused as to what was the matter with the deceased, the accused remarked that he had "beat hell out of him and hope that I killed him." He said further that deceased had broken into his house for the purpose of stealing, and if he had had a gun he would have shot the deceased. The accused, in his statement, contended that during the argument between him and the deceased the deceased started to run his hand in his right pocket, like he was going after something, and the accused reached back, obtained a piece of stovewood, and hit the deceased once, without any intention to kill him. The State's evidence on this point contradicted the statement of the accused. 1. The evidence as hereinbefore set forth was sufficient to sustain the verdict of voluntary manslaughter.
2. One special ground assigns error on an excerpt from the court's charge as follows: "Now included in the charge of murder as set out in the indictment a lesser offense is involved, and it is for you to determine whether or not the defendant is guilty of murder, or guilty of the lesser offense, or not guilty under the *Page 265 rules the court will give you in charge when this law is applied to the evidence and the defendant's statement." It is contended that the phrase "a lesser offense is involved" was an expression of an opinion that the accused was guilty of voluntary manslaughter. This excerpt was given after the court had correctly charged the principles of law pertaining to murder. A careful analysis of the excerpt will reveal that the language used, in view of the entire charge and the record in the case, is not susceptible of the construction which counsel place upon it. A fair interpretation of the language is that, under the indictment and the evidence, voluntary manslaughter was involved to the extent that it became the duty of the court to submit that question to the jury for determination along with the question of assault with intent to murder and justification. The court afterward fully submitted this proposition to the jury. We do not think the jury could have misunderstood the court. We find no reason to infer that the jury, under any view of the situation, would have been impressed that the court was intimating or expressing an opinion that the accused was guilty of voluntary manslaughter or of any other offense. The assignments of error are without merit.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.